1. Introduction
Re Maurer Estate[1] covers a lot of ground. It involves a will and a letter of wishes (‘LOW’). The will directs the trustee to distribute the residue of the estate in accordance with the LOW to several charities. Issues raised include the date the LOW was signed, whether it can be incorporated by reference in the will, and whether it is precatory. Other issues include whether the residue clause is a pour-over clause, whether the will creates a half-secret trust, and whether the court should order the will to be rectified. Thus, there are a potpourri of issues and something of interest to everyone.
2. Facts
The testator, Erna Maurer (‘Erna’) died on 20 August 2020, leaving a will executed 21 June 2019. The Will appointed Solus Trust Company Limited (‘Solus’) as her executor and trustee and instructed it to distribute the residue of the estate in accordance with a letter of wishes. The LOW was executed on the same day as the Will.
Erna had made two previous wills in which she left large sums to charitable and non-charitable organizations to be determined by her executor, but she left the remainder in trust for her two adult children, the respondents, Paula and Paul. She did not leave the residue to her children in the 2019 Will, but she did make specific bequests to her children and others. In the Will, she also she described two inter vivos trusts under which she had a life interest, and in which the children and their descendants were named beneficiaries of the remainder.
In Article 4 of the 2019 Will Erma directed that Solus should distribute the remainder of her property ‘among those charitable and non-charitable organizations and individuals identified by me in the most recent letter of wishes to the Trustee signed by me at such time after my death, in the amounts and for the charitable purposes which I have stated in my letter of wishes to the Trustee’.
Article 4.1(b) provided that the Trustee should distribute the residue of the estate among the charitable and non-charitable organizations and individuals that the testator identified in her most recent letter of wishes.
The LOW began by stating:
I have signed a Will dated June 21, 2019 (”my Will”) which requires that the residue of my estate be distributed among the charitable and non-charitable organizations and individuals which I have identified to the Trustee in my latest letter of wishes as of my death. I have signed this letter of wishes dated June 21, 2019, to identify my current chosen charitable beneficiaries which I want to receive a portion of the residue of my estate according to my Will. I may update this letter of wishes from time to time.
It is my wish that the residue of my estate be divided into TWELVE (12) equal shares and that the following beneficiaries will receive the shares or fractions of shares listed below for each of them:
This was followed by a list of 14 charities and an indication whether each should be paid a full, half, or quarter share of one of the twelve shares.
Although Erna considered making further estate planning changes, she did not prepare a new Will or LOW after 21 June 2019.
Questions arose about the operation of Article 4 of the Will, so Solus brought a petition in March 2025 seeking the opinion, advice, or direction of the Court. Paula and Paul responded. They took the position that the LOW was not part of the Will, and they should receive an equal share of the residue. In their response in May 2025 Paula and Paul argued that the residue should be distributed to them as intestate successors.
3. Analysis and Judgment
3.1 Issues
Justice Forth stated that the case raised the following issues:
- Is the Letter of Wishes “precatory”?
- Is Article 4 of the Will a pour-over clause?
- Is the Letter of Wishes incorporated by reference into the Will such that it is fully effective as though it had been made as part of the Will?
- Should an order be granted pursuant to s. 58 of the Wills, Estates and Succession Act,[2] that the Will be rectified to provide that the residue of Erna’s estate be distributed to the beneficiaries set out in the Letter of Wishes?
- Should an order be granted pursuant to s. 46 of WESA, if the Letter of Wishes is not valid and enforceable, then the reside of the estate is to be distributed pursuant to s. 4.1(e) of the Will?
- Should an order be made to rectify the Will to include the Letter of Wishes pursuant to s. 59 of WESA?
- Should an order be granted that Solus holds the residue of Erna’s estate subject to a half-secret trust for the benefit of the beneficiaries identified in the Letter of Wishes?
- Should an order be made that Solus holds the residue of Erna’s estate subject to a charitable trust for the benefit of the beneficiaries identified in the Letter of Wishes?
3.1.1 Is the LOW precatory?
The respondents argued that the LOW is precatory and therefore unenforceable because it fails to satisfy the certainty of intention requirement to create a trust.
Justice Forth referred to case law[3] to conclude that language expressing a wish, hope, or confidence is often precatory. However, in every case the court must ascertain whether the language does indeed only create an unenforceable moral obligation or whether the evidence establishes that the testator clearly intended to create an enforceable trust. She found that Erna’s intentions were clear and could be gathered from Article 4 of the Will and the LOW. Those intentions were that Solus should distribute the residue of Erna’s estate to specific named charities in the proportions she specified. Thus, she held that the Letter of wishes was not precatory.
3.1.2 Is Article 4 of the Will a pour-over clause?
Justice Forth noted that a pour-over clause directs that part or all of the estate should be added to the corpus of an existing trust. Regrettably, as distinct from American law, under Canadian law, the clause will be valid only if the trust is not subject to revision or is revocable, even though those powers were not exercised.[4]
Justice Forth held, rightly, I believe, that Article 4 is not a pour-over clause because it does not add property to an existing trust, whether amendable or revocable or not. Moreover, she noted that the LOW only applied when Erna died and did not take effect during her lifetime.
3.1.3 Incorporation by reference
The doctrine of incorporation by reference permits a document in existence when the will is made to be incorporated in the will, provided that the testator intends that to happen.[5]
Justice Forth noted that Erna clearly intended the LOW to be read together with Article 4 of her Will. However, she held that that the evidence failed to show that Erna intended to incorporate the LOW in the Will. Thus, the LOW could not be incorporated.
Nonetheless, Justice Forth went on to find that it was clear from the circumstances, including the fact that drafting lawyer, Ms.Cathcart, deposed that it was her invariable practice to have documents such as an LOW signed before a will, that the LOW was in existence when the Will was executed. She also found that LOW was clearly identified in the Will.
3.1.4 Application of sections 58, 46, and 59 of WESA
Section 58 is a validating power that the court can use to validate a will that does not comply with the statutory formalities. Justice Forth noted that under section 58(2)(a) the LOW could be deemed to be incorporated in the Will if it represents Erna’s testamentary intentions. However, the intentions must be ‘deliberate, fixed and final’ as of the date of her death, not on the date the Will was signed. Her intentions were not fixed and final because the LOW contemplated that it could be updated from time to time. Accordingly, she held that the LOW could not be cured by section 58.
Section 46 provides that if a gift cannot take effect for any reason, including the fact that a beneficiary predeceases the testator, the gift will pass to the alternative beneficiary. Justice Forth concluded that the Will does not make a gift but instead constitutes a direction to the trustee. Accordingly, section 46 does not apply.
Section 59 is a rectification provision that the court can use to rectify a will if the will fails to carry out the testator’s intentions for a number of reasons. Justice Forth concluded that there was no failure to carry out Erna’s intentions and therefore section 59 could not be applied.
3.1.5 Is there a half-secret trust?
Justice Forth noted that a half-secret trust arises when the will creates a trust that leaves property to a named trustee but does not disclose the beneficiaries. She followed the generally accepted view that while the testator may communicate the trust obligation for a fully secret trust to the intended trustee at any time before she dies, for a half-secret trust the communication must take place before or at the time the will is made. She found that the trust established in Article 4 is a half-secret testamentary trust, Erna should have communicated her intention to Solus before or at the time the Will was made. She did not do so because Solus did not receive a copy of the Will until several days after the Will was made. Thus, Justice Forth held that Article 4 does not constitute a valid half-secret trust.
This is a regrettable conclusion in my opinion. In Oosterhoff on Trusts, 10th edition,[6] we explain that the distinction on the basis of the time of communication between fully secret trusts and half-secret trusts is based on dicta in Blackwell v Blackwell,[7] and is caused by the fact that courts have wrongly confused half-secret trusts with the doctrine of incorporation by reference.[8] For incorporation by reference to happen, the document must indeed be in existence when the will is made. But there is no valid basis for requiring the communication for a half-secret trust to take place before the will is made. I also draw attention to a later passage in Oosterhoff on Trusts,[9] in which we argue that the secret trust is best understood as a constructive trust to perfect intentions and protect detrimental reliance.
3.1.6 Does Solus hold the residue subject to charitable trust for the benefit of the organizations listed in the LOW?
Justice Forth found that it was clear from Article 4 as a whole that Erna wanted to leave the residue for charitable purposes, even though she did mention ‘non-charitable organizations’ in Article 4.1(b). Moreover, the extrinsic evidence supports her intention to make gifts to charitable purposes.
Justice Forth then went on to consider whether the organizations listed in the LOW are indeed charitable and found that they are, she held that Erna ‘expressed a general charitable intent in the Will and that Article 4 of the Will created a charitable trust for the entities listed in the Letter of Wishes’. Further, she held that the three certainties of intention, subject matter, and objects were satisfied. Accordingly, she directed that Solus holds the residue of Erna’s estate for the benefit of the beneficiaries listed in the LOW.
—
[1] 2025 BCSC 1539.
[2] S.B.C. 2009, c. 13 (‘WESA’).
[3] Including Bergler v Odenthal, 2020 BCCA 175 at para 28, and Glasspool v Glasspool Estate, 1998 CarswellBC 649, affirmed 1999 BCCA 30.
[4] See, e,g., Kellogg Estate v Kellogg, 2023 BCSC 2292, additional reasons 2014 BCSWC 1541, 2014 BCSC 1556, and 2014 BCSC 2056, affirmed 2015 BCCA 203; Re Quinn Estate, 2018 BCSC 365, affirmed sub nom Quinn Estate v Rydland, 2019 BCCA 91; Re Waslenchuk Estate, 2020 BCSC 192. And see Vilenski v Weinrib-Wolfman, 2022 ONSC 2116, which followed the BC cases, but see also Re MacCallum Estate, which held a pour-over trust valid because the trust’s amending powers had not been exercised. For a critical analysis of the cases, see Oosterhoff on Trusts, 10th ed by Albert H Oosterhoff, Robert Chambers, and Mitchell McInnes (Toronto: Thomson Reuters, 2024, Notes and Questions to §12:14.
[5] For a full list of the prerequisites of the doctrine, see Quinn Estate v Rydland, supra, footnote 4, para 19.
[6] Supra, footnote 4, §12.14
[7] [1929] AC 318 (HL) at 319
[8] See also Waters Law of Trusts in Canada, 5th ed by Donovan WM Waters, Mark R Gillen, and Lionel D Smith (Toronto: Thomson Reuters, 2021), pp 302-308.
[9] Supra, footnote 4, §12:15.
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Written by: Albert Oosterhoff
Posted on: November 28, 2025
Categories: Commentary, WEL Newsletter
1. Introduction
Re Maurer Estate[1] covers a lot of ground. It involves a will and a letter of wishes (‘LOW’). The will directs the trustee to distribute the residue of the estate in accordance with the LOW to several charities. Issues raised include the date the LOW was signed, whether it can be incorporated by reference in the will, and whether it is precatory. Other issues include whether the residue clause is a pour-over clause, whether the will creates a half-secret trust, and whether the court should order the will to be rectified. Thus, there are a potpourri of issues and something of interest to everyone.
2. Facts
The testator, Erna Maurer (‘Erna’) died on 20 August 2020, leaving a will executed 21 June 2019. The Will appointed Solus Trust Company Limited (‘Solus’) as her executor and trustee and instructed it to distribute the residue of the estate in accordance with a letter of wishes. The LOW was executed on the same day as the Will.
Erna had made two previous wills in which she left large sums to charitable and non-charitable organizations to be determined by her executor, but she left the remainder in trust for her two adult children, the respondents, Paula and Paul. She did not leave the residue to her children in the 2019 Will, but she did make specific bequests to her children and others. In the Will, she also she described two inter vivos trusts under which she had a life interest, and in which the children and their descendants were named beneficiaries of the remainder.
In Article 4 of the 2019 Will Erma directed that Solus should distribute the remainder of her property ‘among those charitable and non-charitable organizations and individuals identified by me in the most recent letter of wishes to the Trustee signed by me at such time after my death, in the amounts and for the charitable purposes which I have stated in my letter of wishes to the Trustee’.
Article 4.1(b) provided that the Trustee should distribute the residue of the estate among the charitable and non-charitable organizations and individuals that the testator identified in her most recent letter of wishes.
The LOW began by stating:
I have signed a Will dated June 21, 2019 (”my Will”) which requires that the residue of my estate be distributed among the charitable and non-charitable organizations and individuals which I have identified to the Trustee in my latest letter of wishes as of my death. I have signed this letter of wishes dated June 21, 2019, to identify my current chosen charitable beneficiaries which I want to receive a portion of the residue of my estate according to my Will. I may update this letter of wishes from time to time.
It is my wish that the residue of my estate be divided into TWELVE (12) equal shares and that the following beneficiaries will receive the shares or fractions of shares listed below for each of them:
This was followed by a list of 14 charities and an indication whether each should be paid a full, half, or quarter share of one of the twelve shares.
Although Erna considered making further estate planning changes, she did not prepare a new Will or LOW after 21 June 2019.
Questions arose about the operation of Article 4 of the Will, so Solus brought a petition in March 2025 seeking the opinion, advice, or direction of the Court. Paula and Paul responded. They took the position that the LOW was not part of the Will, and they should receive an equal share of the residue. In their response in May 2025 Paula and Paul argued that the residue should be distributed to them as intestate successors.
3. Analysis and Judgment
3.1 Issues
Justice Forth stated that the case raised the following issues:
3.1.1 Is the LOW precatory?
The respondents argued that the LOW is precatory and therefore unenforceable because it fails to satisfy the certainty of intention requirement to create a trust.
Justice Forth referred to case law[3] to conclude that language expressing a wish, hope, or confidence is often precatory. However, in every case the court must ascertain whether the language does indeed only create an unenforceable moral obligation or whether the evidence establishes that the testator clearly intended to create an enforceable trust. She found that Erna’s intentions were clear and could be gathered from Article 4 of the Will and the LOW. Those intentions were that Solus should distribute the residue of Erna’s estate to specific named charities in the proportions she specified. Thus, she held that the Letter of wishes was not precatory.
3.1.2 Is Article 4 of the Will a pour-over clause?
Justice Forth noted that a pour-over clause directs that part or all of the estate should be added to the corpus of an existing trust. Regrettably, as distinct from American law, under Canadian law, the clause will be valid only if the trust is not subject to revision or is revocable, even though those powers were not exercised.[4]
Justice Forth held, rightly, I believe, that Article 4 is not a pour-over clause because it does not add property to an existing trust, whether amendable or revocable or not. Moreover, she noted that the LOW only applied when Erna died and did not take effect during her lifetime.
3.1.3 Incorporation by reference
The doctrine of incorporation by reference permits a document in existence when the will is made to be incorporated in the will, provided that the testator intends that to happen.[5]
Justice Forth noted that Erna clearly intended the LOW to be read together with Article 4 of her Will. However, she held that that the evidence failed to show that Erna intended to incorporate the LOW in the Will. Thus, the LOW could not be incorporated.
Nonetheless, Justice Forth went on to find that it was clear from the circumstances, including the fact that drafting lawyer, Ms.Cathcart, deposed that it was her invariable practice to have documents such as an LOW signed before a will, that the LOW was in existence when the Will was executed. She also found that LOW was clearly identified in the Will.
3.1.4 Application of sections 58, 46, and 59 of WESA
Section 58 is a validating power that the court can use to validate a will that does not comply with the statutory formalities. Justice Forth noted that under section 58(2)(a) the LOW could be deemed to be incorporated in the Will if it represents Erna’s testamentary intentions. However, the intentions must be ‘deliberate, fixed and final’ as of the date of her death, not on the date the Will was signed. Her intentions were not fixed and final because the LOW contemplated that it could be updated from time to time. Accordingly, she held that the LOW could not be cured by section 58.
Section 46 provides that if a gift cannot take effect for any reason, including the fact that a beneficiary predeceases the testator, the gift will pass to the alternative beneficiary. Justice Forth concluded that the Will does not make a gift but instead constitutes a direction to the trustee. Accordingly, section 46 does not apply.
Section 59 is a rectification provision that the court can use to rectify a will if the will fails to carry out the testator’s intentions for a number of reasons. Justice Forth concluded that there was no failure to carry out Erna’s intentions and therefore section 59 could not be applied.
3.1.5 Is there a half-secret trust?
Justice Forth noted that a half-secret trust arises when the will creates a trust that leaves property to a named trustee but does not disclose the beneficiaries. She followed the generally accepted view that while the testator may communicate the trust obligation for a fully secret trust to the intended trustee at any time before she dies, for a half-secret trust the communication must take place before or at the time the will is made. She found that the trust established in Article 4 is a half-secret testamentary trust, Erna should have communicated her intention to Solus before or at the time the Will was made. She did not do so because Solus did not receive a copy of the Will until several days after the Will was made. Thus, Justice Forth held that Article 4 does not constitute a valid half-secret trust.
This is a regrettable conclusion in my opinion. In Oosterhoff on Trusts, 10th edition,[6] we explain that the distinction on the basis of the time of communication between fully secret trusts and half-secret trusts is based on dicta in Blackwell v Blackwell,[7] and is caused by the fact that courts have wrongly confused half-secret trusts with the doctrine of incorporation by reference.[8] For incorporation by reference to happen, the document must indeed be in existence when the will is made. But there is no valid basis for requiring the communication for a half-secret trust to take place before the will is made. I also draw attention to a later passage in Oosterhoff on Trusts,[9] in which we argue that the secret trust is best understood as a constructive trust to perfect intentions and protect detrimental reliance.
3.1.6 Does Solus hold the residue subject to charitable trust for the benefit of the organizations listed in the LOW?
Justice Forth found that it was clear from Article 4 as a whole that Erna wanted to leave the residue for charitable purposes, even though she did mention ‘non-charitable organizations’ in Article 4.1(b). Moreover, the extrinsic evidence supports her intention to make gifts to charitable purposes.
Justice Forth then went on to consider whether the organizations listed in the LOW are indeed charitable and found that they are, she held that Erna ‘expressed a general charitable intent in the Will and that Article 4 of the Will created a charitable trust for the entities listed in the Letter of Wishes’. Further, she held that the three certainties of intention, subject matter, and objects were satisfied. Accordingly, she directed that Solus holds the residue of Erna’s estate for the benefit of the beneficiaries listed in the LOW.
—
[1] 2025 BCSC 1539.
[2] S.B.C. 2009, c. 13 (‘WESA’).
[3] Including Bergler v Odenthal, 2020 BCCA 175 at para 28, and Glasspool v Glasspool Estate, 1998 CarswellBC 649, affirmed 1999 BCCA 30.
[4] See, e,g., Kellogg Estate v Kellogg, 2023 BCSC 2292, additional reasons 2014 BCSWC 1541, 2014 BCSC 1556, and 2014 BCSC 2056, affirmed 2015 BCCA 203; Re Quinn Estate, 2018 BCSC 365, affirmed sub nom Quinn Estate v Rydland, 2019 BCCA 91; Re Waslenchuk Estate, 2020 BCSC 192. And see Vilenski v Weinrib-Wolfman, 2022 ONSC 2116, which followed the BC cases, but see also Re MacCallum Estate, which held a pour-over trust valid because the trust’s amending powers had not been exercised. For a critical analysis of the cases, see Oosterhoff on Trusts, 10th ed by Albert H Oosterhoff, Robert Chambers, and Mitchell McInnes (Toronto: Thomson Reuters, 2024, Notes and Questions to §12:14.
[5] For a full list of the prerequisites of the doctrine, see Quinn Estate v Rydland, supra, footnote 4, para 19.
[6] Supra, footnote 4, §12.14
[7] [1929] AC 318 (HL) at 319
[8] See also Waters Law of Trusts in Canada, 5th ed by Donovan WM Waters, Mark R Gillen, and Lionel D Smith (Toronto: Thomson Reuters, 2021), pp 302-308.
[9] Supra, footnote 4, §12:15.
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