In Ontario, any trust that is intended to take effect upon a person’s death must typically be in writing, as it forms part of the will. According to the Succession Law Reform Act, a will must be in writing to be valid – and this includes any trusts it incorporates. Once a will is probated, it becomes a public document, which means that the details of who inherits what are accessible to others. For individuals who wish to keep certain gifts or beneficiaries private, this transparency may be undesirable, leading some to attempt the use of secret or semi-secret trusts.
A secret trust arises when a testator leaves an outright gift to someone in their will – let’s say a family member or close friend – and that person has secretly agreed to hold the gift in trust for another beneficiary. The arrangement is made outside the will, often verbally, and the intended beneficiary’s identity does not appear in the will at all. The goal, typically, is to keep that person’s inheritance confidential.[1]
In contrast, a semi-secret trust occurs when the will acknowledges that a gift is being left “in trust,” but doesn’t disclose who the beneficiary is or what the terms of the trust are. The will makes it clear that the recipient is not meant to receive the gift for themselves but offers no further information. The missing details – such as who benefits and under what conditions – are usually communicated privately.[2]
But what happens when a secret trust is not honoured — how can the intended beneficiary prove that it ever existed, let alone enforce it in court?
To be legally valid, a secret trust must meet three essential requirements: (1) the person giving the property (the donor) must have intended to create a trust; (2) that intention must be clearly communicated to the person receiving the property (the trustee); (3) and the trustee must accept the obligation to carry out the trust. In addition to those elements, the trust must also meet what courts call the “three certainties” – clear intention, identifiable subject matter, and a defined beneficiary. [3]
Recent Ontario case law continues to demonstrate how courts approach secret trust claims with skepticism — especially when such claims seek to override formal estate planning documents. Courts consistently give greater weight to formal, properly executed wills and trust instruments over alleged verbal agreements or informal arrangements, which are difficult to prove and easy to dispute.
In Prosser v. Jaun (2025 ONSC 2634), the applicant alleged that his late mother created a secret trust in his favour regarding a family cottage, and that his stepfather (also deceased) who inherited the property by survivorship, had agreed to hold part of it in trust.[4]
To support the claim, he sought access to legal files from both his mother’s and stepfather’s lawyers, arguing the documents could help prove the existence of the trust and that solicitor–client privilege had either been waived or did not apply.
The court disagreed. The applicant failed to meet the burden of proof necessary to establish a secret trust and offered no corroborating evidence, as required under section 13 of the Evidence Act, which imposes a higher standard in estate-related claims. Ultimately, the court denied access to the stepfather’s legal files, holding that solicitor–client privilege remained intact, and there was no compelling justification to override it. While his mother’s legal files were disclosed with the estate’s consent, this was not enough to establish the trust.
A similar outcome occurred in Germana v. Fennema Estate (2024 ONSC 2011), where the applicant, a long-time common-law spouse of the deceased, claimed she was entitled to an additional $1 million from the estate based on a secret trust that the deceased communicated verbally over a phone call to his son.[5] However, the deceased had already provided for her in both a valid will and a signed cohabitation agreement. The court rejected her claim, finding no clear or corroborated evidence that a trust was intended. It held that the existing legal documents governed, and the alleged secret promise was insufficient to override formal estate planning.
[1] Gefen Estate v. Gefen, 2022 ONCA 174 (CanLII), at para. 46.
[2] Id.
[4] Prosser v. Jaun, 2025 ONSC 2634 (CanLII)
[5] Germana v Fennema Estate, 2024 ONSC 2011 (CanLII)
