Undocumented Trusts – No Requirement for Formal Trust Agreements

Gilbertson Davis LLPAppeals, Civil Litigation, Commercial and Contract Litigation, Contract Disputes, Recreational Property Litigation, Trust Litigation0 Comments

In the recent decision from the Ontario Court of Appeal (“ONCA”), Corvello v. Colucci, 2022 ONCA 159, the ONCA confirmed that a trust can exist even where there is no written trust agreement. At issue in the case was the ownership of a land use permit which allowed the holder(s) of the permit to build on and use the land for recreational purposes. In the court of first instance, the appellant took the position that the permit belonged to him alone. However, the trial judge determined that the appellant actually held the permit “in trust for himself and the respondents as beneficial owners”. On appeal, the appellant argued that the trial judge erred in law and in fact by determining that an undocumented trust agreement existed. The ONCA advised that it is trite law that a valid trust requires “three certainties: certainty of intention to create a trust, certainty of … Read More

Ontario Allows Virtual Witnessing of Wills and Powers of Attorney During COVID-19 Pandemic

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Coronavirus, COVID-19, Trust Litigation, Trusts and Trust Law, Wills and Estates0 Comments

Since April 7, 2020, the Ontario government has permitted the virtual witnessing of Wills and Powers of Attorney pursuant to an Emergency Order made under the Emergency Management and Civil Protection Act. In Ontario, a valid Will or Power of Attorney must be signed in the presence of two witnesses under the Succession Law Reform Act and the Substitute Decisions Act, 1992, respectively.  (Note – holograph wills that are wholly handwritten by the testator and signed by the testator are exempt from the statutory witness requirement).  Wills and Estates lawyers were experiencing difficulties complying with the statutory witness requirements due to physical distancing rules and the increased risk from COVID-19 to the elderly and persons with certain medical conditions.  Accordingly, the Emergency Order was welcome relief to Wills and Estates lawyers and their clients. Under the Emergency Order, a Will or Power of Attorney can be signed in the presence … Read More