What Must a Trust Deed Contain in Ontario?

Calling a document a "trust deed" doesn't make it one. Ontario law looks at substance, not labels — certain elements must actually be present and clearly expressed before a document functions as a valid, enforceable trust.

Whether you're reviewing a document a lawyer drafted for you, or trying to understand what should be in a trust before you sign anything, these are the pieces that matter.

The Three Certainties Come First

Before anything else, a trust deed needs to satisfy what Ontario trust law calls the three certainties:

• Certainty of intention — the document must show a genuine, binding intention to create a trust, not just a wish or an informal request.
• Certainty of subject matter — the property being placed in trust must be clearly identified.
• Certainty of objects — the beneficiaries, or the class of beneficiaries, must be identifiable.

A document missing any one of these risks failing as a trust altogether, regardless of what it's titled.

Who Must Be Identified

The settlor

The person creating the trust and transferring property into it.

The trustee — and a successor

Who will hold and manage the trust property, and, just as important, who steps in if that person can no longer act, dies, or resigns. A trust deed without a succession plan for the trustee role can leave a trust without anyone able to act on its behalf.

The beneficiaries or beneficiary class

Named individuals, or an objectively identifiable class, such as "my grandchildren living at my death."

What Property Is Actually Being Transferred

The trust property — sometimes called the corpus — needs to be described specifically enough that there's no doubt what's inside the trust: a particular property, a specific investment account, or "all of my right, title, and interest in" a named asset. Vague descriptions create exactly the kind of ambiguity a trust is supposed to prevent.

The Terms: Powers, Duties, and Discretion

A trust deed typically spells out:

• The trustee's powers — to invest, sell, lease, mortgage, or otherwise deal with trust property
• Whether the trustee has discretion over distributions, or must follow a fixed formula
• When and how beneficiaries actually receive income or capital
• Any conditions attached to a distribution

Leaving these vague forces a trustee to fall back on general default rules that may not match what the settlor actually wanted.

Administrative Provisions

• Trustee compensation — how, or whether, the trustee is paid for acting.
• Accounting obligations — what records the trustee must keep and who's entitled to see them.
• Governing law — confirming the trust is governed by Ontario law.
• How and when the trust ends — what happens to the property once its purpose is fulfilled or its term expires.

Skipping that last point is one of the more common gaps in poorly drafted trusts, and exactly the kind of detail that leads to disputes years later if it isn't addressed up front.

Execution: Signing the Document Properly

Ontario law doesn't impose the same rigid two-witness signing formula on an ordinary lifetime trust deed that it does on a will or a power of attorney. Even so, signing it properly — often before a witness, with the settlor's and trustee's roles clearly acknowledged — remains standard legal practice, since a poorly executed document invites disputes about whether it was ever validly created.

A testamentary trust — one created inside a will rather than as a stand-alone document — is different: it must meet the will's own formal signing and witnessing requirements, because it only exists as part of a validly executed will.

Frequently asked questions