CITATION: Willis Estate v. Willis Estate, 2007 ONCA 552
DATE: 20070731
DOCKET: C44997
COURT OF APPEAL FOR ONTARIO
LASKIN, MACFARLAND JJ.A. and BENOTTO J. (ad hoc)
BETWEEN:
MARIA WILLIS, ESTATE TRUSTEE for THE ESTATE OF GEORGE ALBERT WILLIS
Applicant (Appellant)
and
ESTATE OF HAROLD ALBERT WILLIS
Respondent (Respondent)
Jackie E. McGaughey-Ward for the appellant
Leighton T. Roslyn for the respondent
Heard and released orally: July 20, 2007
On appeal from the order of Justice Louise L. Gauthier of the Superior Court of Justice dated February 16, 2006.
ENDORSEMENT
[1] The sole issue on this appeal is whether the trial judge committed a reviewable error in finding that the transferors intended to create a trust. We agree with the respondent that this finding is a finding of fact. Thus, to overturn this finding, the appellant must show that it was tainted by palpable and overriding error. We are not persuaded that she has done so.
[2] The appellant had the onus to establish an intention to create a trust. All that she can point to is the words “in trust” in the document itself. These words by themselves, however, are not determinative of whether a trust was intended. The appellant has no other evidence to support her position. By contrast, there is at least some evidence supporting the trial judge’s finding that no trust was intended.
[3] For example, the document refers to nominal monetary consideration, which is inconsistent with an intent to convey the properties in trust. Also, there is considerable evidence of Harold’s labour and devotion to his parents, which would suggest an absolute transfer of the lots to him. Finally, as the trial judge pointed out, there was no evidence that either the transferor or their solicitor ever considered preparing a trust document.
[4] For these brief reasons, the appeal is dismissed with costs fixed at $6,000, all inclusive.
“John Laskin J.A.”
“J. MacFarland J.A.”
“M.L. Benotto J. (ad hoc)”