Introduction
A pour-over clause is a provision contained in a will which directs that all or part of a testator’s estate be added to an existing trust, to be held under the terms of such trust. They are valid and quite common in the U.S., however they have rarely been judicially considered in Canada and – where they have been so considered – there is a growing tendency not to recognize their validity where the trust is amendable and revocable.
While one court decision in Nova Scotia has validated a pour-over clause to an amendable and revocable inter vivos trust, British Columbia and Ontario courts have not taken the same approach and have instead found these clauses to be invalid. Courts in other Canadian provinces have yet to render a reported decision on this point.
The main concern by the Ontario and BC courts is that a pour-over clause essentially allows a testator to change a testamentary disposition by amending the trust document, which does not require the same formalities as altering a will or executing a codicil and which creates uncertainty regarding the actual disposition made by the testator.
British Columbia: Establishing the guiding principles
The British Columbia Court of Appeal in Quinn Estate, 2019 BCCA 91, aff’g 2018 BCSC 365 and relying on Kellogg Estate, 2013 BCSC 2292, aff’d 2015 BCCA 203, summarized that there are two problems with pour-over clauses:
- the testator appears to reserve the right to make future dispositions of trust property without complying with the execution formalities for testamentary documents; and
- where the trust is amendable, you cannot know with certainty the actual disposition purported to be made by the testator because it is governed by terms that are not found in the will itself.
In Waslenchuk Estate, 2020 BCSC 1929, the court held that the decision in Quinn “turns on whether the pour over clause is to an amendable or revocable trust.” It was the possibility of amendment or revocation after the will was made, taking place outside of the strict formality requirements for testamentary documents, that rendered the clause invalid. The court held that the fact that a settlor/testator does not actually amend the trust prior to passing does not change the nature of the trust (i.e., that it is amendable and revocable).
Nova Scotia: Taking a different approach
In MacCallum Estate, 2022 NSSC 34, the court was primarily concerned with the presumption against intestacy and therefore considered the effects of validating the pour-over clause in these particular circumstances. The court said there were no concerns about the testator’s capacity, fraud, or undue influence. The court held that the pour-over clause was valid given that the trust was in existence at the time of executing the will and was not subsequently changed. This position has not been followed by any other reported decision in Canada.
Ontario: Following in BC’s principled footsteps
In Vilenski v. Weinrib-Wolfman, 2022 ONSC 2116, where a pour-over clause into the testator’s alter ego trust was considered, the court adopted the approach of the British Columbia courts and the reasoning in Quinn, to hold that the pour-over clause into the alter ego trust was invalid even though the trust was not amended after the will was made.
While the court in Vilenski contemplated the reasoning and decision of MacCallum Estate, it was not inclined to conduct a “retrospective consideration” of the effect of the pour-over clause. The court noted that the formalities of execution are there to safeguard against fraud, undue influence, and lack of testamentary capacity. The court was not prepared to take the approach that where those concerns are not present, the strict formalities could be relaxed. The court opined that “a loosening of the restrictions after the fact does not serve the intended objectives of the formalities.”
In Mio v. Bergvall et al, 2025 ONSC 3919, a decision reported in June 2025, Vilenski was followed and accepted as the current law in Ontario. The deceased in Mio was a resident of Minnesota who had engaged in complex estate planning with the assistance of a Minnesota lawyer. The deceased had a Will containing a pour-over clause into an amendable inter vivos trust. She died with property in Ontario. The court found the pour-over clause, as it relates to the Ontario property, was invalid.
Significantly, the court in Mio also declined to apply the curative provisions of section 21.1 of the Succession Law Reform Act (Ontario) to validate the clause, stating:
13 […] there is a very material difference between curing a technical defect in a testamentary document as opposed to curing one that goes to the validity of a particular disposition or to an entire testamentary document. Curing defects in form is different than curing defects in substance.
15 […] The problem is not one where the disposition is defeated by a mere technicality. It is not the case that [the deceased] did not properly execute her will. The problem is much more significant. It is one created by operation of the common law.
Summary
Based on the current common law, a pour-over clause into an amendable and revocable inter vivos trust is not considered valid in Ontario. Drafting solicitors should be cautious if asked to include pour-over clauses in Ontario wills, to either local or foreign trusts, and ought to carefully consider alternate options which will ensure a valid testamentary disposition (such as, for example, building terms within the will itself which largely mirror those set out in the inter vivos trust).
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