Income from estate could only be used to benefit wife while wife was alive

Prior to November 2019, husband and wife lived together in property owned as tenants in common. In November 2019, husband went into long-term care. In February 2000, wife sold off former matrimonial home and put deposit on living arrangements known as “life lease”. Lease was taken as tenants in common, however, because husband was never able to leave long-term care facility and never resided in residence governed by lease. Husband passed away in December 2002. Wife sold life lease in 2007 and deposited 50 per cent of sale proceeds into husband's estate. Lease raised questions for executor of husband’s will. Executor brought application for interpretation of will. Application granted. Husband's interest in “any residence we may occupy at the time of my death” extended to residence that was owned by husband and wife as tenants in common, but was not occupied by husband as of date of death. Husband’s intention was that wife be able to remain living in whatever home parties, but for husband’s medical condition, would have been living in at time of husband’s death. Wife was entitled to net income of residue of estate. Net income was gross income less income tax, accounting fees, legal fees and executors/trustees compensation paid on annual basis. Income from estate could only be used to benefit wife while wife was alive. Wife's powers to encroach on estate were subject to condition of maintaining wife’s lifestyle. Costs paid by estate should not be apportioned, if possible, between capital and income.

Stuart v. Stuart (2019), 2019 CarswellOnt 11522, 2019 ONSC 4328, James W. Sloan J. (Ont. S.C.J.).

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