What is the test for establishing a secret trust?
Ontario, Canada
The following excerpt is from Gefen Estate v. Gefen, 2022 ONCA 174 (CanLII):
As the trial judge noted, the courts distinguish between an intention to create a legally enforceable trust as opposed to a moral obligation intended to guide the recipient’s conscience: see, e.g., Re Snowden, [1979] Ch. 528. The latter cannot be the basis of a secret trust. Even if the donor’s intentions and wishes are made clear and acknowledged by the recipient, that alone is not enough to establish a secret trust: Milsom v. Holien, 2001 BCSC 868, 40 E.T.R. (2d) 77, at paras. 15, 35-36, and 42-43.
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