A recurring problem in estate litigation is the gap between a testator’s moral hope and a legally enforceable obligation. Beneficiaries and disappointed family members often read aspirational language in a Will as a binding command. The Ontario Superior Court of Justice addressed this issue directly in Sherman v. Sherman, 2026 ONSC 3115, granting summary judgment and dismissing the claim on the basis that the disputed language was purely precatory.
The Will and the Disputed Clause
The dispute arose between Joshua and William, the surviving sons of Sharon, who died on July 21, 2018. Sharon left a holograph Will dated July 11, 2018. The Will directed that the funds in her TD bank account, her home, and all of its contents were to pass “solely and completely” to William.
The Will then added a single, contested sentence:
“I trust him to care in whatever way he sees fit to provide for his brother, Joshua….”
Joshua sued William, seeking a declaration that the Will created a testamentary trust in his favour, together with damages for breach of trust, breach of fiduciary duty, conversion, and unjust enrichment, along with a dependant’s support claim under Part V of the Succession Law Reform Act. William moved for summary judgment on the basis that the disputed sentence was a non-binding moral wish, not a trust.
Failing the First Certainty
To establish a valid testamentary trust in Ontario, a claimant must satisfy the three certainties: imperative language of the settlor, certainty of subject matter, and certainty of objects. Justice McCarthy held that Joshua’s claim failed at the first hurdle.
The words “I trust” did not, in the Court’s view, impose a binding obligation on William. Directing William to provide for Joshua “in whatever way he sees fit” left compliance to William’s complete discretion, which is the opposite of an imperative direction. Because the Will gave the assets to William “solely and completely,” the disputed sentence rose no higher than a wish or a request. As the Court put it, drawing on Waters’ Law of Trusts in Canada, “no trust exists if the recipient is to take absolutely, but he is merely put under a moral obligation as to what is to be done with the property.”
Justice McCarthy grounded that conclusion in more than a century of Ontario authority, including Johnson v. Farney (1913), 29 O.L.R. 223 (C.A.), Smith v. Patterson (1912), 4 D.L.R. 89 (Ont. H.C.J.), and Re Miles (1917), 11 O.W.N. 292 (H.C.), each of which cautions against elevating a testator’s expression of hope into a binding trust obligation.
No Room for the Armchair Rule
Joshua urged the Court to apply the armchair rule and examine extrinsic evidence of Sharon’s circumstances to identify her true intent. The Court declined to do so.
The armchair rule is engaged only where a Will is ambiguous. Here, the language was plain, even if precatory, and required no interpretation. Citing Dice v. Dice Estate, 2012 ONCA 468, and distinguishing Ross v. Canada Trust Company, 2021 ONCA 161, Justice McCarthy confirmed that the recent shift in some jurisdictions towards a more contextual approach does not oblige an Ontario court to reach beyond clear testamentary language. With the first certainty absent, there was no trust, and no basis for the derivative claims of breach of trust or breach of fiduciary duty.
Practice Takeaways
- Precatory words do not bind. Language of “hope,” “wish,” “desire,” or “trust” will not create a legal obligation where property is otherwise gifted absolutely and the manner of compliance is left entirely to the recipient.
- Drafting must be explicit. A testator who wants to secure a family member’s financial future cannot rely on the moral honour of another beneficiary. The trust must be commanded on the face of the Will through imperative language, with clearly identified subject matter and objects.
- Summary judgment is an effective tool. Where the language of a Will is plain, Ontario courts are prepared to resolve trust-construction disputes on a summary basis, sparing estates the cost and delay of a full trial.
Sherman v. Sherman is a useful reminder that estate litigation often turns on the difference between what a testator hoped for and what a testator commanded. Aspirational language, however sincere, cannot make up for a drafting decision to gift property absolutely. For solicitors, the case underscores the importance of precision at the drafting stage.
Thank you for reading!
Osama Saleemi