In the recent Ontario Superior Court of Justice decision Burwell et al v Wozniak, 2024 ONSC 5851, the Court examined complex trust and proprietary estoppel issues between former partners. The decision in Burwell clarifies the boundaries of proprietary estoppel within Ontario law and emphasizes the importance of consistency between preliminary promises and formal agreements in trust disputes. The applicant and respondent were involved in a former relationship, during which time the applicant and their business partner launched a subscriber-based billing management software company (the “Company”). The applicant sought to establish a family trust; however, the pair separated. Wishing to reconcile the relationship, the applicant sent the respondent an email purporting to bequeath her fifty (50) percent of the shares of the Company (the “Email”). Later the pair finalized a trust agreement appointing the applicant and respondent as beneficiaries. However, the trust agreement did not clearly define the ownership of the … Read More
Undocumented Trusts – No Requirement for Formal Trust Agreements
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
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