Prosser v. Jaun, 2025 ONSC 2634: Do Children Have a Right to a Stepparent’s Legal Files in a Secret Trust Dispute?
Case Analysis: Prosser v. Jaun, 2025 ONSC 2634
Overview
In Prosser v. Jaun, 2025 ONSC 2634, the Ontario Superior Court of Justice addressed a motion for production of solicitors’ files in a dispute over an alleged secret trust concerning a Silver Islet cottage. The applicant, the son of the deceased, claimed that his mother and stepfather created a secret trust to benefit him in the cottage. He sought access to his mother’s and stepfather’s legal files to substantiate this claim. The respondents, including the stepfather (represented by litigation guardians due to alleged dementia), conceded production of the mother’s files but opposed disclosure of the stepfather’s, citing solicitor-client privilege and lack of relevance. Justice H.M. Pierce granted production of the mother’s documents but denied access to the stepfather’s, emphasizing the high evidentiary threshold for secret trusts and the sanctity of privilege. This analysis covers the facts, applicable law, judicial reasoning, and lessons learned.
The Facts
The applicant, Gary, is the son of Anne, who died in 1995. Anne married Rudy, Gary’s stepfather, in 1990. Before their marriage, Anne owned a cottage at Silver Islet, which she bequeathed to Gary in her 1990 will, executed at Gordon, Carter and Johnson (likely held by Ericksons LLP). She sold this cottage in 1993 (file with Atwood Labine LLP) and purchased new Sibley properties in 1992 (file with de Bakker Law). Rudy, a skilled tradesman, built a new cottage on these properties.
In 1994, facing a terminal illness, Anne added Rudy as a joint tenant to the Sibley properties for nominal consideration, with no trust indicated in the transfer documents (handled by Kovanchak, Ferris, Ross). Anne died in 1995, and Rudy became the sole owner by survivorship, filing Survivorship Declarations in 1995 asserting sole ownership. That year, Rudy transferred part of the Sibley properties to Gary for “natural love and affection” but retained the lot with the Silver Islet cottage.
Rudy’s 1995 will (likely with Ericksons LLP) directed the cottage’s transfer to Gary, but his 1999 and 2007 wills (with Weiler, Maloney, Nelson) revoked this, directing the cottage to other relatives and excluding Gary, citing the 1995 transfer. Gary, unaware of the later wills, alleged a secret trust between Anne and Rudy, claiming Rudy’s actions breached it. He sought production of Anne’s and Rudy’s solicitors’ files, including wills and real estate records. The respondents conceded Anne’s files but opposed Rudy’s, arguing privilege and irrelevance.
The Law
The court applied the following legal principles and statutes:
- Secret Trusts:
- A secret trust arises when a testator leaves property to a trustee who secretly agrees to hold it for another’s benefit, without disclosing the trust in the will (*Gefen Estate v. Gefen*, 2022 ONCA 174, paras 46–48). The trustee’s agreement distinguishes a secret trust from mere guidance (Gefen Estate, para 50).
- Essential elements include the donor’s intention, communication to the donee, and the donee’s acceptance, plus the three certainties: imperative words, certain subject, and certain beneficiary (*Champoise v. Prost*, 2000 BCCA 426, paras 15–16).
- Solicitor-Client Privilege:
- Communications between a solicitor and client for legal advice, intended to be confidential, are privileged (*Pritchard v. Ontario (Human Rights Commission)*, 2004 SCC 31, para 15; *SNC-Lavalin Engineers & Constructors Inc. v. Citadel General Assurance Co.*, 2003 CanLII 64289 (ON SC), para 54).
- Privilege is fundamental, with narrow exceptions for fraud, crime, or civil wrongs (*Alberta (Information and Privacy Commissioner) v. University of Calgary*, 2016 SCC 53, para 20).
- Solicitor’s notes are privileged as records of client communications (*Mamaca v. Coseco Insurance Co.*, 2004 CanLII 36059 (ON SC), paras 21–22).
- In estate litigation, an exception may allow disclosure to ascertain a testator’s intentions, but it is narrowly applied (*Geffen v. Goodman Estate*, 1991 CanLII 69 (SCC), para 59).
- Waiver of Privilege:
- Waiver requires fairness and consistency, with the onus on the claimant to prove it (*Spicer v. Spicer*, 2015 ONSC 4175, para 13; *Montemarano v. Montemarano*, 2020 ONSC 1393, para 19).
- Disclosure of some documents does not waive privilege over an entire file unless the client’s state of mind is material (*Procon Mining and Tunnelling Ltd. v. McNeil*, 2009 BCCA 281, para 19; *Joshi v. Chada*, 2020 ONSC 1367, para 11).
- Evidence Act:
- Section 13 of the Evidence Act, RSO 1990, c E.23 requires corroboration of an interested party’s evidence in claims against a deceased person’s estate.
- Joint Interest Principle:
- A beneficiary with a prima facie interest in a trust may access trust-related documents, as legal advice for trust administration serves joint interests (*Patrick v. Telus Communications Inc.*, 2005 BCSC 1762, para 39).
Analysis
Justice Pierce granted production of Anne’s documents but denied Rudy’s, addressing three issues:
- Production of Anne’s Documents:
- The respondents conceded that Gary, as Anne’s son, was entitled to her solicitors’ files related to her 1990 will and real estate transactions (para 11). The court ordered production by Atwood Labine LLP, de Bakker Law, and Ericksons LLP within 30 days (para 70).
- Secret Trust and Joint Interest Principle:
- Gary argued that Rudy’s files were not privileged because they related to a secret trust in which he had a beneficial interest, invoking the joint interest principle (Patrick v. Telus). The court found Gary failed to establish a prima facie trust (paras 35–43):
- No evidence showed Anne’s intent to create a trust when adding Rudy as a joint tenant in 1994. The transfer documents and reporting letter suggested survivorship, not a trust (para 39).
- Rudy’s Survivorship Declarations and the 1995 transfer to Gary for “natural love and affection” did not indicate a trust (paras 41–42).
- Without evidence of Anne’s intent, communication, and Rudy’s acceptance (Champoise), the joint interest principle did not apply (para 43).
- Solicitor-Client Privilege for Rudy’s Documents:
- The court held that Rudy’s wills and real estate files were privileged, as they involved confidential communications for legal advice (Pritchard; SNC-Lavalin). No exceptions (e.g., fraud) applied (para 47).
- Gary argued waiver based on disclosed documents (e.g., 1994 transfer letter, 1995 Survivorship Declarations). The court found limited waiver for the transfer letter copied to Gary but no broad waiver, as Rudy’s state of mind was not material (Spicer; Joshi; para 58).
- The estate litigation exception (Geffen v. Goodman Estate) did not apply, as this was not a wills case, and Rudy’s capacity was irrelevant absent medical evidence (Johnson v. Johnson, 2022 ONCA 682, para 13](https://canlii.ca/t/js7fr); paras 59–61).
- Relevance of Rudy’s Documents:
- Even if not privileged, Rudy’s files were irrelevant. A secret trust depends on Anne’s intent at the time of the 1994 joint tenancy, not Rudy’s subsequent actions or wills (Gefen Estate; para 68).
Lessons Learned
- High Threshold for Secret Trusts: Proving a secret trust requires clear evidence of the donor’s intent, communication, and donee’s acceptance, corroborated under section 13 of the Evidence Act (Champoise; Gefen Estate).
- Solicitor-Client Privilege Is Robust: Privilege protects confidential legal communications, with narrow exceptions. Partial disclosure does not waive entire files (Pritchard; Alberta v. University of Calgary).
- Relevance Is Key: Documents must directly relate to the disputed issue (e.g., donor’s intent) to justify production (Gefen Estate).
- Joint Interest Principle Requires Prima Facie Evidence: Beneficiaries need a prima facie trust interest to access trust documents (Patrick).
- Capacity Assumptions Avoided: Dementia does not automatically negate capacity to make a will, requiring specific evidence (Johnson).
Conclusion
*Prosser v. Jaun* underscores the challenges of proving a secret trust and the protection afforded to solicitor-client privilege. Gary’s failure to provide corroborated evidence of a trust and the irrelevance of Rudy’s files led to limited document production. For assistance in estate disputes involving trusts or privilege, contact Bobila Walker Law.
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