Sharon Elizabeth Sherman died on July 21, 2018 (the “Deceased” or “Estate”), with a holographic Last Will and Testament dated July 11, 2018 (the “Will”).[1] The salient terms of the Will are as follows:
My RBC investments have been transferred within this last week to my TD bank account, so I have no remaining investments. As to the funds in my TD bank account, … my home at 1033 Crawford Road, Bracebridge, Ontario, and all the contents therein, I leave solely and completely to my son William Alexander Gabriel Sherman. I trust him to care in whatever way he sees fit to provide for his brother, Joshua James Orion [sic] Sherman.[2]
The Deceased was survived by her two sons, Joshua Sherman (the “Plaintiff”) and William Sherman (the “Defendant”).
The Plaintiff, inter alia, sought a declaration that the Will created a testamentary trust in his favour.[3] The Defendant brought a motion for summary judgment on the basis that there was no genuine issue to be tried. Among the Defendant’s assertions, were that the Will does not form a testamentary trust, but rather the clause in question was precatory in nature; and the will does not require interpretation thus there was no need to invoke the “armchair rule”.[4]
Importantly, the Will has not been challenged and no application for a certificate of appointment of estate trustee had been made.[5]
Summary Judgment:
When it comes to responding to a summary judgment motion, the court makes it clear that the opposing party “put their best foot forward”, mere reliance on denials in pleadings or repetition of defences laid out in an affidavit are not enough.[6]
On a motion for summary judgment, the Court will look to Rules 20.04.(2) -(2.2) of the Rules of Civil Procedure (the “Rules”). Accordingly, the court shall grant summary judgment if:[7]
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.
According to the Supreme Court of Canada in Hryniak v Mauldin, 2014 SCC 7, “there will be no genuine issue requiring trial when the judge is able to reach a fair and just determination on the merits”.[8]
In arriving at a determination, the Court will consider the evidence submitted by the parties[9], and if the determination is being made by a judge, they may exercise the following powers:[10]
- Weighing the evidence.
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence.
Further, for the purpose of exercising the above, a judge may order that oral evidence be presented.[11]
The Court in Hryniak outlined that the “judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers”.[12] However, should the judge tend toward there being a genuine issue, “she should then determine if the need for trial can be avoided by using the new powers under Rule 20.04(2.1) and (2.2).
Application:
The Court determined that there was no genuine issue for trial with regards to whether a testamentary trust was formed by the Will.
In doing so, the court outlined the three certainties that must be present for the creation of a testamentary trust:[13]
1) the language of the settlor must be imperative;
2) the subject matter of the trust property must be certain; and
3) the objects of the trust must be certain.
The Court found that the language of the Will was in fact precatory and articulated a mere wish that the Defendant ‘care in whatever way he sees fit to provide for his brother’. This language “fell short of showing an intention for the recipient to hold property in trust”.[14] It was not imperative. Further, the Court found that the inclusion of the words “I trust” was not sufficient to create a binding obligation.
The court noted that the caselaw over the past 110 years has been clear. The Ontario Court of Appeal in Johnson v Farney (1913) CanLII 546 (ON SCAD) held that “mere expressions of a testator’s wishes should not be viewed as mandatory”.[15]
Similar to the within case, in Smith v Patterson (1912), 4 DLR 89 (Ont. HCJ), the will in question provided that property distributed to a spouse “was to be disposed of by her as she may deem just and prudent in the interest of my family”, and the Court of Appeal held that this language did not create a trust.[16]
The Plaintiff argued that the armchair rule ought to be invoked to determine the Deceased’s intentions. However, the Court found the Will to be unambiguous, thus not requiring interpretation. The clause in question simply reflected a wish of the Deceased, which again, was not binding.
As such, there was no genuine issue to be tried on this issue of whether a testamentary trust was formed by the Will, and the Plaintiff’s action was ultimately dismissed.
Takeaways:
This case serves as an important reminder that where the three certainties for the creation of a testamentary trust do not exist, a trust will not be formed. While precatory language such as “I trust” in a will serves to outline the Deceased’s wishes, it does not create a binding obligation to satisfy the first certainty of imperative language by a settlor.
—
[1] Sherman v. Sherman, 2026 ONSC 3115 (CanLII), at para 2 & 3.
[2] Ibid at para 3.
[3] Ibid at para 6.
[4] Ibid at para 7.
[5] Ibid at para 4 & 5.
[6] Ibid at para 12.
[7] R.20.04(2) of the Rules.
[8] Hryniak v Mauldin, 2014 SCC 7, at para 49.
[9] R.20.04(2.1) of the Rules.
[10] Ibid.
[11] R. 20.04(2.2) of the Rules.
[12] Hryniak at para 66.
[13] Footnote 1, at para 14.
[14] Ibid at para 16.
[15] Ibid at para 17.
[16] Ibid at para 18.
Written by: Jessica Homer
Posted on: June 30, 2026
Categories: Commentary, WEL Newsletter
Sharon Elizabeth Sherman died on July 21, 2018 (the “Deceased” or “Estate”), with a holographic Last Will and Testament dated July 11, 2018 (the “Will”).[1] The salient terms of the Will are as follows:
My RBC investments have been transferred within this last week to my TD bank account, so I have no remaining investments. As to the funds in my TD bank account, … my home at 1033 Crawford Road, Bracebridge, Ontario, and all the contents therein, I leave solely and completely to my son William Alexander Gabriel Sherman. I trust him to care in whatever way he sees fit to provide for his brother, Joshua James Orion [sic] Sherman.[2]
The Deceased was survived by her two sons, Joshua Sherman (the “Plaintiff”) and William Sherman (the “Defendant”).
The Plaintiff, inter alia, sought a declaration that the Will created a testamentary trust in his favour.[3] The Defendant brought a motion for summary judgment on the basis that there was no genuine issue to be tried. Among the Defendant’s assertions, were that the Will does not form a testamentary trust, but rather the clause in question was precatory in nature; and the will does not require interpretation thus there was no need to invoke the “armchair rule”.[4]
Importantly, the Will has not been challenged and no application for a certificate of appointment of estate trustee had been made.[5]
Summary Judgment:
When it comes to responding to a summary judgment motion, the court makes it clear that the opposing party “put their best foot forward”, mere reliance on denials in pleadings or repetition of defences laid out in an affidavit are not enough.[6]
On a motion for summary judgment, the Court will look to Rules 20.04.(2) -(2.2) of the Rules of Civil Procedure (the “Rules”). Accordingly, the court shall grant summary judgment if:[7]
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.
According to the Supreme Court of Canada in Hryniak v Mauldin, 2014 SCC 7, “there will be no genuine issue requiring trial when the judge is able to reach a fair and just determination on the merits”.[8]
In arriving at a determination, the Court will consider the evidence submitted by the parties[9], and if the determination is being made by a judge, they may exercise the following powers:[10]
Further, for the purpose of exercising the above, a judge may order that oral evidence be presented.[11]
The Court in Hryniak outlined that the “judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers”.[12] However, should the judge tend toward there being a genuine issue, “she should then determine if the need for trial can be avoided by using the new powers under Rule 20.04(2.1) and (2.2).
Application:
The Court determined that there was no genuine issue for trial with regards to whether a testamentary trust was formed by the Will.
In doing so, the court outlined the three certainties that must be present for the creation of a testamentary trust:[13]
1) the language of the settlor must be imperative;
2) the subject matter of the trust property must be certain; and
3) the objects of the trust must be certain.
The Court found that the language of the Will was in fact precatory and articulated a mere wish that the Defendant ‘care in whatever way he sees fit to provide for his brother’. This language “fell short of showing an intention for the recipient to hold property in trust”.[14] It was not imperative. Further, the Court found that the inclusion of the words “I trust” was not sufficient to create a binding obligation.
The court noted that the caselaw over the past 110 years has been clear. The Ontario Court of Appeal in Johnson v Farney (1913) CanLII 546 (ON SCAD) held that “mere expressions of a testator’s wishes should not be viewed as mandatory”.[15]
Similar to the within case, in Smith v Patterson (1912), 4 DLR 89 (Ont. HCJ), the will in question provided that property distributed to a spouse “was to be disposed of by her as she may deem just and prudent in the interest of my family”, and the Court of Appeal held that this language did not create a trust.[16]
The Plaintiff argued that the armchair rule ought to be invoked to determine the Deceased’s intentions. However, the Court found the Will to be unambiguous, thus not requiring interpretation. The clause in question simply reflected a wish of the Deceased, which again, was not binding.
As such, there was no genuine issue to be tried on this issue of whether a testamentary trust was formed by the Will, and the Plaintiff’s action was ultimately dismissed.
Takeaways:
This case serves as an important reminder that where the three certainties for the creation of a testamentary trust do not exist, a trust will not be formed. While precatory language such as “I trust” in a will serves to outline the Deceased’s wishes, it does not create a binding obligation to satisfy the first certainty of imperative language by a settlor.
—
[1] Sherman v. Sherman, 2026 ONSC 3115 (CanLII), at para 2 & 3.
[2] Ibid at para 3.
[3] Ibid at para 6.
[4] Ibid at para 7.
[5] Ibid at para 4 & 5.
[6] Ibid at para 12.
[7] R.20.04(2) of the Rules.
[8] Hryniak v Mauldin, 2014 SCC 7, at para 49.
[9] R.20.04(2.1) of the Rules.
[10] Ibid.
[11] R. 20.04(2.2) of the Rules.
[12] Hryniak at para 66.
[13] Footnote 1, at para 14.
[14] Ibid at para 16.
[15] Ibid at para 17.
[16] Ibid at para 18.
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