In Sherman v. Sherman, 2026 ONSC 3115, the Ontario Superior Court of Justice was asked to determine whether a holographic will created a testamentary trust or merely expressed a precatory and non-binding wish. The decision provides a clear reaffirmation of the “three certainties” required to establish a trust and serves as an important reminder that imprecise language in a will can have significant consequences. While precatory language may aid in the interpretation of testamentary documents, they do not create legal obligations. For further discussion on precatory documents, see Suzana Popovic-Montag’s blog post from June 1, 2026.
Background
The Deceased left a holographic will that gifted her estate “solely and completely” to her son, W, while adding that she “trust[ed] him to care in whatever way he sees fit to provide for his brother”, J.
J commenced a claim asserting, among other things, that the Will created a testamentary trust in his favour. W brought a motion for summary judgment, arguing that the impugned language was merely precatory (i.e., a non-binding expression of hope or wish).
The Test for a Testamentary Trust
McCarthy J. reviewed the law regarding the creation of a trust. In order for a trust to be established, the “three certainties” must be satisfied:
- Certainty of intention (imperative language);
- Certainty of subject matter; and
- Certainty of objects (beneficiaries).
All three must be present for a trust to exist. See Knight v. Knight (1840), 49 E.R. 58 (Eng. Ch.); Donovan Waters, Mark Gillen & Lionel Smith, ed, Waters’ Law of Trusts in Canada, 4th ed. (Toronto: Carswell, 2012), at p. 140
Precatory Language vs. Imperative Language
The central issue in Sherman was whether the testator’s use of the words “I trust him to care…” created a binding obligation. The Court held that it did not. McCarthy J. found that the Will clearly conveyed an absolute gift to William (“solely and completely”); and that the subsequent language amounted only to a moral obligation, not a legal one. In particular, the Court emphasized that: “The use of the words, ‘I trust’, do not create a binding obligation on the Defendant.”
As a result, the certainty of intention was not met. Without imperative language demonstrating an intention to impose enforceable obligations, no trust could arise.
The Court’s reasoning is firmly grounded in longstanding authority cautioning against elevating expressions of wish into enforceable obligations.
McCarthy J. relied on:
- Johnson v. Farney (1913), 1913 CanLII 546 (ON SCAD), 29 O.L.R. 223 (C.A.), at p. 225, emphasizing that courts must be “very careful not to make words mandatory which are a mere indication of a wish”;
- Smith v. Patterson (1912), 4 D.L.R. 89 (Ont. H.C.J.), where similar discretionary language did not create a trust; and
- Re Miles (1917), 11 O.W.N. 292 (H.C.), confirming that gifts accompanied by discretionary language remain absolute.
These cases underscore a consistent judicial reluctance to impose trusts where a testator has not used clear, imperative language.
No Need for the Armchair Rule
J also urged the Court to apply the “armchair rule” to ascertain the testator’s true intentions. The Court declined to do so, holding that the Will was not ambiguous, the language was clear, albeit precatory; and the armchair rule is generally reserved for circumstances where the testator’s intention cannot be discerned from the text alone. Courts will not resort to extrinsic evidence where the language of the will is otherwise clear.
Disposition
Having found that no testamentary trust existed, the Court concluded that W was not a trustee and, as such, there could be no breach of trust or fiduciary duty. Summary judgment was granted, and the plaintiff’s claim was dismissed in its entirety.
Takeaways: Drafting Testamentary Trusts in Ontario
The decision in Sherman highlights several practical lessons for individuals—and practitioners—in drafting wills:
1. Use Clear, Imperative Language
If a trust is intended, the will should use explicit and mandatory language, such as “I direct my trustee to hold…”or “My trustee shall pay…”. Avoid expressions like “I hope”, “I wish”, or “I trust,” unless a non-binding moral request is intended.
2. Avoid Mixing Absolute Gifts with Suggested Obligations
An absolute gift (e.g., “to X solely and completely”) is inherently inconsistent with a trust obligation. If a trust is intended, the drafting should reflect that structure clearly and consistently.
3. Ensure the Three Certainties Are Met
A valid trust requires: (1) a clear intention to create a trust, (2) identifiable property, and (3) clearly defined beneficiaries. Failure on any of these elements will defeat the trust.
4. Seek Professional Advice
Holographic wills are particularly prone to ambiguity and litigation. Professional drafting can ensure that testamentary intentions are expressed with precision and enforceability.
Conclusion
Sherman v. Sherman serves as a cautionary tale: not every statement of trust creates a trust. The distinction between a moral wish and a legal obligation remains central to the law of testamentary trusts. Where a testator intends to bind a beneficiary to act for the benefit of another, that intention must be expressed in clear, imperative terms, or risk being treated as no more than a hope.