Canada Case Law

Kuhn v. Townsend

Court

Supreme Court of Nova Scotia

No express trust was created because the three certainties were not satisfied: Mary gifted purchase funds and retained no direction or imperative language imposing a trust; Wanda held legal title and exercised ownership by selling the property during her lifetime, causing the testamentary gift to Annie to adeem; therefore the sale proceeds belong to Wanda's estate and the applicant's trust claims fail.

Source excerpt

• Express trust
• Secret trust
• Certainty of intention
• Subject-matter certainty
• Objects of trust
• Ademption

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Armstrong v. Kotanko

Court

British Columbia Court of Appeal

The Court of Appeal granted a short stay of vacant possession and ordered security for costs, finding the appeal on secret trust and constructive trust issues was devoid of merit.

• Secret trust
• Remedial constructive trust
• Occupational rent
• Summary trial
• Stay of execution
• Security for costs

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Armstrong v. Kotanko

Court

Supreme Court of British Columbia

The court dismissed a claim of secret trust and remedial constructive trust over a townhouse and bank account, and awarded occupational rent and utilities to the defendant.

• Secret trust
• Remedial constructive trust
• Express trust - three certainties
• Occupational rent
• Admissibility of deceased hearsay
• Will interpretation

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Gefen Estate v. Gefen

Court

Court of Appeal for Ontario

The Court dismissed the appeals: the trial judge did not err in requiring clear, cogent evidence to establish a mutual wills agreement and correctly found such evidence lacking; no enforceable secret trust was established because there was no transfer from Elias to Harvey or requisite communication and acceptance; the trial judge’s unconscionable procurement findings were upheld where supported by evidence and remain effective for the transactions set aside (approx. $8.66M); the trial judge properly determined that the Townsgate joint tenancy had been severed and her inclusion of findings as…

Source excerpt

• Mutual wills
• Secret trust
• Unconscionable procurement
• Inter vivos transfers
• Severance of joint tenancy
• Costs

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MacCallum Estate

Court

Supreme Court of Nova Scotia

Because the alter‑ego trust was created, signed and fully constituted before execution of the will, and the trustee had accepted fiduciary obligations with communication and acquiescence established, the clause operated as a valid secret/semi‑secret trust enforceable in equity; accordingly paragraph 3(d) authorizes the executor to transfer the residue to the trustee and no partial intestacy results.

Source excerpt

• Pour-over will
• Secret trust
• Semi-secret trust
• Intestacy
• Wills act compliance
• Formal execution requirements

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Bergler v. Odenthal

Court

British Columbia Court of Appeal

The Court of Appeal upheld a finding that a secret trust was created and accepted, and held the trust severed a joint tenancy, so the appeal was dismissed.

• Secret trust
• Acceptance of trust obligation
• Severance of joint tenancy
• Constructive trust
• Breach of fiduciary duty
• Remedies and tracing

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Bergler v. Odenthal

Court

Supreme Court of British Columbia

The court dismissed a post-trial request to reconsider findings about a secret trust, holding there was no new evidence and the motion was not a substitute for appeal.

• Secret trust
• Joint tenancy
• Right of survivorship
• Reconsideration of judgment
• Admissions
• Secret-trust

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Bergler et al. v. Odenthal

Court

Supreme Court of British Columbia

The court found a secret trust in favour of Susanne Bergler, held Bernd Odenthal breached his fiduciary duties, and awarded transfer, interest, damages, and costs.

• Secret trust
• Breach of trust
• Remedies
• Accounting
• Pre-judgment interest
• Joint accounts

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Spylo v. Spylo

Court

Court of Appeal for Ontario

The trial judge’s factual findings that the T3 forms did not establish a secret trust, that the alleged trust document and related evidence did not establish that Gordon held the Castlefield property in trust for Andrew, and that the judge’s single brief intervention did not create a reasonable apprehension of bias were not palpably and overridingly erroneous; accordingly the appeal is dismissed and the respondents awarded costs of $18,000 inclusive.

Source excerpt

• Secret trust
• Estate trustee duties
• Property trust
• Adverse inference for missing document
• Reasonable apprehension of judicial bias
• Standard of appellate review

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Piamonte v. Piamonte

Court

Supreme Court of British Columbia

The court awarded Mario special costs against John for intemperate, scandalous conduct up to September 27, 2013, then ordered ordinary costs from the estate.

• Secret trust
• Probate
• Special costs
• Party and party costs
• Scale b costs
• Conflict of interest

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