Ruling rejects son’s attempt to pursue relief as dependent of his deceased mother
The Ontario Superior Court has summarily dismissed a son’s claim seeking a declaration that his late mother’s will created a testamentary trust in his favour and relief as her dependent under part V of Ontario’s Succession Law Reform Act, 1990 (SLRA).
In Sherman v. Sherman, 2026 ONSC 3115, the parties were the surviving sons of the testator, who passed away on July 21, 2018. Her holographic will dated July 11, 2018, contained dispositive instructions providing that she:
- solely and completely left the following to the defendant: her bank account funds; her residence at Crawford Road, Bracebridge, Ontario; and everything in her home
- trusted the defendant to care for and provide for his brother, the plaintiff
In his claim against the defendant, the plaintiff commenced a claim seeking:
- a declaration of a testamentary trust in his favour
- damages for breaches of trust and fiduciary duty, conversion, and unjust enrichment
- relief as a dependent under part V
- injunctions, tracing orders, a declaration of a constructive trust, and other forms of relief
The defendant moved for summary judgment based on the lack of genuine issues for trial. Opposing his brother’s motion, the plaintiff alleged that the court should invoke the armchair rule to give effect to the testator’s true intentions.
Entire claim summarily denied
The Ontario Superior Court of Justice granted the defendant’s summary judgment motion. First, the court found no genuine issue for trial regarding whether the will created a testamentary trust, given the testator’s language.
The court ruled that the will:
- was unambiguous
- required no interpretation
- contained clear directions and instructions
- used precatory but plain language
- did not use imperative or binding language
The court noted that it would generally apply the armchair rule to interpret a will only if it could not ascertain the testator’s intention from the will’s plain meaning.
Second, the court held that it could not find the defendant liable for a breach of trust because he was not a trustee.
Third, the court saw no genuine issue for trial on whether the plaintiff was the testator’s dependent for the purposes of making a support claim under part V of the SLRA.
The court found no compelling evidence establishing that the plaintiff would qualify as a dependent under s. 57(1) of the SLRA or that the testator had any legal obligation to support him.
The court determined that the evidence showed that the testator:
- was not supporting the plaintiff immediately before her death
- loaned him $10,000 in 2007
- considered this loan a debt he owed her
- transferred “the paltry amount of $200” to him online in December 2017
The court added that the evidence showed that the plaintiff had withdrawn from parental supervision and control and resided independently in British Columbia from 2014 until the testator’s death.
The court considered the following circumstances irrelevant or misplaced in this case:
- the plaintiff’s financial means and struggles
- his reconciliation with the family
- his disability
- the defendant’s payments to him after the testator’s death
Fourth, the court saw no evidentiary basis for findings of conversion, unjust enrichment, or breaches of fiduciary duty or constructive trust in the plaintiff’s favour.
