Pour-over will clauses are a popular estate planning tool in the United States, but they are not valid in Ontario. These clauses are typically used in wills to “pour” the residue of an estate into an inter vivos trust that is amendable or revocable. As noted by Justice Kimmel in Vilenski v. Weinrib-Wolfman, 2022 ONSC 2116, pour-over clauses are not permitted in Ontario for a variety of reasons, including that a testator may not reserve the right to make future testamentary dispositions that do not comply with the formalities applicable to wills. Indeed, the possibility of amendment or revocation of a trust once a gift has been “poured into” it, after the testator’s will has been executed, renders such clauses invalid.
An issue that Justice Kimmel did not address in Vilenski is whether pour-over clauses may be validated using section 21.1 of the Succession Law Reform Act. This provision makes it possible to admit testamentary instruments to probate even if they do not comply with the formalities applicable to wills.
The question of whether a pour-over clause may be validated was finally put to the Superior Court of Justice in Mio v. Bergvall et al, 2025 ONSC 3919. The testator, who was an American, had had two assets located in Ontario – a cabin and a bank account. Her will, executed in Minnesota in 2021, had a pour-over clause* which gifted the residue of the estate to an inter vivos trust that had last been amended in 2025. Presumably the bank account formed part of the residue of the estate, whereas the testator gifted the cabin to friends. However, the will noted that the cabin was also a trust asset.
Since the pour-over clause was invalid in Ontario, as per Vilenski, the estate trustee conceded that the Ontario assets would be dealt with on an intestacy.As such, the estate trustee sought to validate the clause using section 21.1 of the SLRA, arguing that this provision could be used to give effect to the deceased’s testamentary intentions that would otherwise be defeated due to deficiency in form. The friends who would inherit the cabin under the will, plus the testator’s siblings who would inherit the cabin on an intestacy if the clause was not validated, all consented to the application.
Even though the application was unopposed, it was ultimately dismissed by Justice Fitzpatrick. Section 21.1 could not be used to validate the pour-over clause since the will did not have a “technical defect” which was “merely formalistic in nature” – the type of problem that the will validation power is intended to address. Rather, the defect went to the validity of the very disposition, and would require the curing of a defect in substance. In dismissing the application, Justice Fitzpatrick noted that the problem created could not “be overlooked by upending one aspect of the common law regarding dispositions of property by will which has been held by a decision of this court to be unenforceable.” Moreover, the doctrine of stare decisis also required the court to follow Vilenski.
While the question of whether the will validation power can be used to save a pour-over clause had not been expressly considered in Ontario before Mio, in Vilenski,Justice Kimmel did consider two cases which addressed this issue – Quinn Estate, 2018 BCSC 365 and Quinn Estate v. Rydland, 2019 BCCA 91. In fact, Justice Kimmel expressly noted that she was “[adopting] the reasoning of both the lower court and the court of appeal in the Quinn case” for her determination that a pour-over clause was invalid.
On the issue of whether a pour-over clause could be validated using section 58 of the Wills, Estates and Succession Act, British Columbia’s will validation power, both the BC Supreme Court and the Court of Appeal confirmed that the pour-over clause before the court in that case could not be validated. Like Justice Fitzgerald, the BC Supreme Court concluded that the will validation power could not be used to validate a pour-over clause, but for somewhat different reasons. At first instance, Justice Funt acknowledged that the curative provision was only intended to save wills that do not comply with the formalities of execution, rather than “bless structures which circumvent formalities all together,” but also found that giving section 58 of WESA such a broad interpretation would leave the rectification power in section 59 with no purpose.
Another reason Justice Funt concluded that the estate could not utilize the will validation power was the fact that the inter vivos trust into which the testator directed the residue of the estate to be “poured” was not testamentary in nature, even though it was part of the testator’s estate plan. Since the trust could be amended and thereby did not represent the deliberate or fixed and final intention of the deceased, a requirement that must be satisfied in order to use the will validation power, the pour-over clause could not be validated by incorporating the trust into the will using the doctrine of incorporation by reference.
Justice Funt’s decision was subsequently upheld on appeal, with the Court of Appeal affirming that the will validation power cannot be used to cure substantive invalidity, and that the trust could not be incorporated by reference into the testator’s will using the will validation power.
Thank you for reading and have a fantastic day!
Suzana.
*The pour-over clause in the testator’s will stated:
I give residue of my estate [ … ] as follows:
2.1 To Janet M. Nelson Trust. [sic] to the Trustee of the Janet M. Nelson Trust under an agreement created by me on June 4, 2021, (“Janet M. Nelson Trust”), as amended and existing at my death, to be added to administered, and distributed as part of the assets of that trust.
2.2. If the Janet M. Nelson Trust is not in existence at my death, or if the gift to the Trustee is ineffective in whole or in part for any other reason, then and to the extent, I appoint William A. Mio as my Trustee, and I direct my trustee to administer and distribute any part (including all) of the gift not effectively distributed by the preceding Paragraph in accordance with the provision of the Janet M. Nelson trust as if the agreement establishing such trust (as it now exists) were set forth in full in this instrument.