How have courts considered the concept of a "floating trust" in the context of a grant of the residue of an estate to the surviving spouse for her own use absolutely?
Ontario, Canada
The following excerpt is from Gefen v. Gaertner, 2019 ONSC 6015 (CanLII):
Hood J. grappled with this argument in Bellinger v. Nuytten Estate and found (at para. 39) that no trust was intended in the context of a grant of the residue of the estate to the surviving spouse for her own use absolutely, but it was decided as a factual matter rather than as a legal inevitability. Hood J. considered the various arguments canvassed in Birmingham, and ways in which a “floating trust” could be suspended and held in abeyance during the life of the survivor so as to allow for a grant of the residue for the survivor’s use absolutely that still had attached to it a binding commitment to leave whatever was left to the agreed upon ultimate beneficiaries.[29]
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