Proving a Promise the Will Never Mentioned

The situation

Hieu had already signed a listing agreement for the Meaford house when Sagal's letter arrived. The house had belonged to their late stepmother, and under her will it went to Hieu outright, no conditions, no mention of anyone else. Sagal was asking him to stop the sale and account for half its value instead, and she was asking a lawyer to put that request in writing because asking him directly had already gone nowhere.

Sagal and Hieu had grown up as stepsiblings after their parents married when they were teenagers, in a household that blended two smaller families into one under a single roof in Meaford. Their stepmother had raised children from both sides of that marriage and, later in life, acquired a second property abroad through her own second husband's estate, along with the Meaford house that became the family's anchor property in Ontario. She updated her will only once, several years before she died, naming Hieu as sole beneficiary of the Meaford house because, as she told more than one relative at the time, it was simpler than dividing a single property between two people who did not always see eye to eye and who lived in different cities by then.

What she also did, according to Sagal, was tell Hieu privately that the arrangement on paper was not meant to be the final word. Sagal said their stepmother had asked Hieu, in a conversation the two of them had alone, to hold half the value of the house for her, informally, until Sagal was in a position to buy a home of her own. Sagal was a real estate agent by then, married to Hodan, also a real estate agent, and the two of them had spent years renting apartments across the region while saving for a deposit that always seemed to slip further out of reach as prices moved.

The promise, if it existed, had never made it into a formal document, a codicil, or even a signed letter. It lived only in what Sagal remembered being told secondhand, in fragments of messages her stepmother had sent her over the years, and in whatever Hieu himself was willing to admit. When their stepmother died, Hieu inherited the house cleanly on paper, and he and Sagal did not discuss the earlier conversation for almost a year. When Hieu began preparing to sell, Sagal came to our office asking whether an unwritten promise, made to someone other than her, could still be enforced on her behalf, and whether it was even worth trying.

The risk we had to size

What Sagal was describing is known as a secret trust: a promise, made to a testator before death, that the person named outright in the will actually holds all or part of that gift for someone else. The will itself says nothing about it, and to anyone reading it cold, Hieu is simply the owner. That silence is what makes secret trusts hard to prove and hard to size as a legal risk, because the entire case rests on evidence sitting outside the very document that is supposed to control how the estate gets divided.

To succeed, Sagal would need to show three separate things: that her stepmother genuinely intended to create a binding trust and not merely express a hope or a preference, that she clearly communicated that intention to Hieu specifically, and that Hieu accepted the arrangement, even silently through his conduct, before their stepmother died. Any one of those three pieces missing could be enough to lose the whole claim outright. Hieu, when we approached him through his own lawyer, denied the conversation had ever taken place in the terms Sagal described, and suggested that if something like it had happened, it was a passing suggestion he never actually agreed to carry out.

The evidence Sagal had was real but partial, which is typical of these claims. She had text messages from her stepmother referring to 'the arrangement with Hieu' without spelling out precisely what it meant or how it would work. She had a handwritten note found among her stepmother's papers after her death that mentioned splitting the Meaford house 'the way we discussed,' undated and unsigned by anyone but her stepmother. What she did not have was anything in Hieu's own words admitting the promise existed, and Hieu was not going to volunteer one now that the house was his to sell.

Complicating the timeline further, the estate abroad had not yet been finalized. Their stepmother's foreign property needed to pass through a separate process in another country before its value could be confirmed and distributed, and while the Meaford probate itself was not formally tied to that file, both sides understood that the full picture of what their stepmother had actually left behind would not be clear until it caught up. The wait was not something either side could control or shorten from Ontario, and it meant Sagal had to build her case for months without knowing what leverage she or Hieu would actually be negotiating from once the numbers were final.

What we did

1. Interviewed Sagal in detail about every conversation she could recall, because a secret trust claim lives or dies on specifics: exact dates, who else was in the room, and the precise words used, rather than a general impression of what their stepmother probably wanted for her family in the years before she died, since impressions alone rarely survive being tested by an opposing lawyer.
2. Located the solicitor who had drafted the original will and requested the retained file notes, since a lawyer's contemporaneous record of a client's stated intentions, made at the time and for no other purpose, can carry real weight in a dispute like this even when it does not resolve the question outright on its own. The file turned out to hold no direct mention of a trust, which was itself a useful, if disappointing, fact to know early.
3. Traced and organized the text messages and the handwritten note into a chronological timeline, cross-referenced against other dated events in their stepmother's life, so that when the evidence was eventually shown to the other side it read as one consistent account rather than a scattering of disconnected fragments open to any interpretation. Building that timeline early also revealed gaps in the record we needed to address before relying on it.
4. Identified two relatives who recalled their stepmother discussing the arrangement in general terms over the years, and prepared them as potential witnesses, while being honest with Sagal that secondhand recollections carry less weight on their own than direct written evidence, even though they can still corroborate a consistent pattern when several people describe the same general conversation independently and without having compared notes beforehand.
5. Sent a formal letter to Hieu's lawyer setting out the claim and the evidence supporting it in full, rather than filing a court application immediately, because a credible, well-documented written case sometimes opens a negotiation faster and cheaper than launching litigation does, and it preserves the option of filing a formal court application later if the letter simply goes unanswered or is flatly rejected outright.
6. Tracked the foreign estate's progress in parallel through periodic updates from the family's contact overseas, so that when its value was finally confirmed, Sagal would know the full scope of what her stepmother had actually left behind and could weigh any settlement offer against the complete picture rather than a partial one, avoiding the mistake of settling too early on incomplete numbers.
7. Prepared a realistic, written assessment of trial risk for Sagal, being direct with her that the evidence, while genuinely suggestive of a promise, fell short of certainty, and that a court could reasonably decide the matter either way depending on how much weight it placed on the note against Hieu's flat denial, and how it read the family's overall pattern of behaviour after their stepmother's death.
8. Negotiated directly with Hieu's counsel once the foreign estate closed and its value was confirmed, using the completed financial picture together with the accumulated documentary evidence to press for a resolution that reflected both the real strength and the honest limits of Sagal's case. Waiting for the foreign file to close before pressing hard meant the final number was based on complete information rather than a guess either side might later regret.

The outcome

Hieu's position shifted once his own lawyer reviewed the solicitor's file notes and the handwritten note together, alongside the timeline we had built connecting them to other events in their stepmother's final years. He did not concede that a binding promise had been made in the legal sense, and he never admitted the conversation Sagal described had happened exactly as she remembered it, but he agreed to a negotiated settlement that gave Sagal a defined share of the Meaford property's value, reached without either side formally admitting the other was right.

The share Sagal accepted was well short of the equal split she believed their stepmother had intended, and meaningfully less than what a full win at trial might theoretically have delivered. The settlement reflected the honest weakness in parts of the evidence, particularly the absence of anything in Hieu's own written or spoken words admitting the promise, and the real possibility that a trial could have ended with Sagal recovering nothing at all after months of additional litigation costs on both sides. Getting a certain, negotiated result, even a partial one, mattered more to her in the end than pursuing a larger claim she might ultimately have lost outright in front of a judge.

The house sale went ahead broadly on Hieu's own timeline, with the settlement built into the closing so Sagal's share was paid directly out of the proceeds rather than pursued separately afterward. She and Hodan received their portion once the sale closed, roughly six months after the settlement was signed and not long after the foreign estate itself was finally wound up. They used it toward the deposit their stepmother had apparently intended to help with in the first place, though by a longer and more contested route than any of them would have chosen, and with legal costs on both sides that neither family had budgeted for at the outset.

What you can learn from this