Executive Summary: Key Legal and Evidentiary Issues

• The central issue is whether the holograph will of Sharon Elizabeth Sherman created a testamentary trust in favour of her son Joshua, or whether it used non-binding precatory language.
• Dependency under Part V of the Succession Law Reform Act is disputed, as there is no compelling evidence that the deceased was providing support to the Plaintiff immediately before her death.
• Precatory language in the will — specifically the phrase "I trust him to care in whatever way he sees fit" — was found insufficient to satisfy the first of the three certainties required to establish a trust.
• Claims for breach of trust, breach of fiduciary duty, conversion, unjust enrichment, and constructive trust were advanced but found to be without evidentiary foundation.
• Limitation period arguments under both the Trustee Act and the SLRA were raised by the Defendant, though the court found it unnecessary to resolve them given its other findings.
• No application for the appointment of an estate trustee had been filed, and the will, while un-probated, was not challenged.

Facts of the case

Joshua James Orion Sherman (the Plaintiff) and William Alexander Gabriel Sherman (the Defendant) are the surviving sons of Sharon Elizabeth Sherman, who died on July 21, 2018. Sharon left a holograph will dated July 11, 2018, which had not been probated but had not been challenged. No application for the appointment of an estate trustee was filed. The will stated that the deceased's RBC investments had been transferred to her TD bank account the week prior, leaving no remaining investments, and directed that the funds in her TD bank account, her home at 1033 Crawford Road, Bracebridge, Ontario, and all its contents be left "solely and completely" to William. The will added: "I trust him to care in whatever way he sees fit to provide for his brother, Joshua James Orion [sic] Sherman." Joshua brought a claim against William seeking, among other things, a declaration that the will created a testamentary trust in his favour, damages for breach of trust and breach of fiduciary duty, conversion and unjust enrichment, relief as a dependent under Part V of the Succession Law Reform Act (SLRA), and various other remedies including injunctions, tracing orders, and a declaration of constructive trust. William moved for summary judgment, asserting that no genuine issues requiring a trial existed.

Terms of the will at issue

The operative clause of the will directed that the TD bank account funds, the Bracebridge home, and its contents be given to William "solely and completely," followed by the precatory statement expressing trust in William to provide for Joshua "in whatever way he sees fit." The Plaintiff argued that this language, read together with the testator's evident intention, created a testamentary trust. The Defendant countered that the language was precatory and imposed no binding legal obligation — amounting at most to a moral appeal rather than a mandatory direction.

Reasoning and analysis

Justice McCarthy began with the three-certainties test for the creation of a valid trust, drawn from Knight v. Knight (1840): the settlor's language must be imperative, the subject matter of the trust property must be certain, and the objects of the trust must be certain. The court found that the first certainty — imperative language — was not satisfied. The will gave the estate to William "solely and completely" and the phrase "I trust him" expressed only a wish or request, not a binding obligation. The court drew on Johnson v. Farney (1913) and its adoption of guidance from In re Atkinson, cautioning against reading mandatory force into words that merely indicate a wish. It also referred to Smith v. Patterson (1912), where a testator's direction that property be disposed of "as she may deem just and prudent in the interest of my family" was held not to create a trust, and In Re Miles (1917), where an absolute gift was found despite discretionary language. Because the will was not ambiguous, the court declined to invoke the armchair rule — the principle by which a court places itself in the testator's position at the time of execution to resolve ambiguity. The court noted that the armchair rule applies only where the testator's intention cannot be ascertained from the plain meaning of the will, citing Dice v. Dice Estate, 2012 ONCA 468. The court acknowledged a recent departure from this traditional approach in some jurisdictions, as noted by the Court of Appeal in Ross v. Canada Trust Company, 2021 ONCA 161, but declined to read that decision as a mandate to invoke the armchair rule where the testator's intentions are clear.

On the dependency claim, the court examined whether Joshua qualified as a "dependent" under s. 57(1) of the SLRA — defined as a spouse, parent, child, or sibling to whom the deceased was providing support or was under a legal obligation to provide support immediately before death. The court found no evidence of any legal obligation to support Joshua, and noted that no such obligation was even pleaded. The financial transactions between the deceased and Joshua were limited: a single interac e-transfer of $200 in December 2017 during the three years prior to death, and a $10,000 loan made in 2007 on which Joshua eventually defaulted. The court found that the deceased treated the loan as a debt, referencing emails she sent to her financial advisor in 2009 noting that Joshua had promised to repay but appeared to have reneged, and evidence that Joshua made a payment on the loan in 2009 — suggesting at his discovery that he repaid as much as $4,000 by selling musical instruments. The court also noted that Joshua had been living independently in British Columbia between 2014 and the date of the deceased's death, with no evidence of parental supervision or control, and that the deceased herself was in financial hardship and struggling to keep her home immediately before her death. The claims for conversion, unjust enrichment, breach of fiduciary duty, and constructive trust were found to be entirely without evidentiary basis, and the court observed that these allegations were not meaningfully addressed in the Plaintiff's factum or oral argument. Given its findings, the court found it unnecessary to address the limitation period arguments raised under the Trustee Act or s. 61 of the SLRA.

Ruling and overall outcome

Justice McCarthy granted summary judgment in favour of the Defendant, William Alexander Gabriel Sherman. The Plaintiff's claim was dismissed in its entirety. No monetary award, damages, or costs amount was specified in the decision; the court directed the parties to appear before the Barrie trial coordinator if they were unable to settle the issue of costs.