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Trust - Essential Elements

White v. Gicas, 2014 ONCA 490 (Ont CA, 2014)

In this Court of Appeal case the court stated as follows respecting the essential elements required for the creation of an intentional trust:
[1] Two ingredients combine to create a trust. The first – declaration of a trust – requires three certainties: certainty of intention; certainty of subject-matter; and certainty of objects. The second – constitution of the trust – requires transfer of title to the trust property to the trustee.

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[48] On its face, the Memorandum of Agreement satisfies the three certainties required for a valid declaration of a trust.

[49] As to certainty of intention, the preamble of the document entitled “Constantine Gicas Family Trust” records the prior establishment of the Trust and the agreement of the parties, the settlor and trustees, “to confirm and clarify the terms and conditions of the Trust”. The intention of the settlor to create the Trust, as well of the trustees to administer it, could scarcely be plainer.

[50] Second, the Memorandum of Agreement discloses certainty of subject-matter. The assets of the Trust – shares in various companies – are specifically described in article 1 of the Memorandum. The article expressly permits expansion of the assets to include “any further sums which they [the trustees] shall receive from time to time and any accretions or additions thereto”.

[51] Third, the Memorandum of Agreement satisfies the certainty of objects required as it identifies the objects of the Trust. The primary beneficiaries are Constantine Gicas and anyone who is a child, grandchild or other issue of Constantine Gicas. The secondary beneficiaries are John Gicas, Cynthia Floros and their children, grandchildren or other issue, or a registered charity. That the subject-matter of the Trust does not have to be distributed in equal portions, rather is left to the discretion of the trustees, is of no moment.

[52] Likewise, on its face, the Memorandum of Agreement establishes constitution of the Trust. The trustees acknowledge that they have received and are currently holding as assets of the Trust the assets listed in article 1 of the Memorandum. They also acknowledge that any future sums they receive and any accretions or additions are assets of the Trust and constitute the Trust Fund.


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