Case information

Wills and estates — Wills — Mutual wills — Trusts — Secret trusts — Undue influence —Unconscionable procurement — Husband and wife making mirror wills — Husband later signing a document stating that neither he nor his wife intended to change their wills and that they intended their three children to share in the estate equally — After husband’s death, wife transferring significant assets to eldest son — Is the burden of proof the civil balance of probabilities, or does the requirement that the evidence is clear, cogent and non-speculative impose a higher evidentiary threshold on the party claiming a mutual-will agreement? — What type of property constitutes subject matter in respect to the three certainties of a trust in Canada? — Does a finding of secret trust depend on a finding of a mutual will in Canada? — What is the duration of a secret trust in Canada? — Does a trust depend on the simultaneous transfer of the subject matter in Canada? — Does a claim of unconscionable procurement rely on a direct transfer from the victim to the procurer in Canada?

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Henia and her husband, Elias Gefen, were married for 65 years. They moved to Canada in 1951, invested in real estate, amassing a fortune of approximately $30 million before Elias’ death on October 28, 2011. They had three sons: Harvey, Yehuda and Harry. In 2007, Elias and Henia executed mirror wills in which each of them left their estate to the other spouse. If the survivor did not survive more than 30 days, the estate was to be divided among their three sons in equal shares.
In 2011, Elias was diagnosed with terminal lymphoma and had to be hospitalized. There was a great deal of acrimony in the family concerning Elias’ and Henia’s assets. On August 17, 2011, two months before he died, Elias signed a handwritten document that Harvey had prepared. In that document, Elias stated that he did not intend to change his 2007 will and to the best of his knowledge, his wife had no intention to change hers either. It also indicated that Henia and Elias intended that their estates should be divided equally between the three sons. Henia did not sign this document.
After Elias died, Henia sued Yehuda and Harry over events that occurred when Elias was in hospital. Yehuda and Harry advanced various counterclaims and third-party claims against both Henia and Harvey. At trial, only the counterclaims and third-party claims were in issue. Harry and Yehuda’s Estate each sought a one-third share of the assets accumulated by Henia and Elias over their lifetimes, all of which was held by Henia after Elias’ death and much of which had since been conveyed by Henia to Harvey and his children.
Harry and Yehuda’s Estate relied on the August 2011 document as evidence of a mutual will agreement between Henia and Elias requiring the survivor to treat their children equally and restricting the freedom to make testamentary and inter vivos gifts of the estate. The document was also alleged to have created a secret trust by which all assets received by Harvey from Elias after the date of execution were to be held by Harvey in trust for his brothers. Harvey was also alleged to have caused Henia to transfer assets to himself through unconscionable procurement.

The trial judge dismissed the mutual wills agreement and secret trust claims. She allowed the claim of unconscionable procurement in part. All subsequent appeals were dismissed.