While it is clear the an Attorney cannot make a Will, the Courts have extended the interpretation to include other acts which would have the same effect.
The Substitute Decisions Act does not explicitly mention life insurance or RRSP/RRIF/TFSA beneficiary designations. Instead, the rule comes from case law and related statutes:
- Insurance Act, R.S.O. 1990, c. I.8, s. 171(1): only the insured (while living and capable) may designate or alter beneficiaries under a life insurance policy.
- Cases (e.g., Richardson Estate v. Mew, 2009 ONCA 403; Desharnais v. Toronto Dominion Bank, 2019 ONSC 5626) confirm that an attorney cannot change a beneficiary designation on a registered plan (RRSP, RRIF, RHOSP, RESP, TFSA) or insurance policy.
- The reasoning: a beneficiary designation is considered testamentary in nature (it controls the distribution of property on death) and therefore falls under the same prohibition as “making a will.”
- In addition the beneficiary designation under a deferred profit sharing plan would also be precluded.
Brian Madigan LL.B., Broker