Court voids conditions in will which gave friend an interest in deceased's house due to ambiguity

Unclear language in a woman’s will has led the Ontario Superior Court to declare void the will’s conditions on a beneficiary’s interest in the deceased’s property.

In Barsoski v. Wesley, 2020 ONSC 7407, the issue was the interpretation of a will to determine the beneficiary’s proprietary interest in a house. Diane Barsoski died in June 2017. Her will dated December 2016 provided a $250,000 bequest to her friend Robert Wesley; ordered her estate trustee to hold her house and its contents at London, Ontario as a home for Wesley within his lifetime; and created a $500,000 fund to ensure that the home would be maintained at no expense to Wesley while he stayed in the house.

The will stated that if Wesley was “no longer living in the house,” the fund should pay for his living expenses, nursing or retirement home care or funeral expenses, and the house and its contents should be sold, with the proceeds going to St. Stephens House of London, a charity which was also a beneficiary under the will.

An investigation found that Wesley’s acquaintance was staying in the house, while Wesley worked full-time in Toronto and then in Sault Ste. Marie. In the application before the court, St. Stephens contended that the fact that Wesley was no longer living in the house should trigger the sale of the house and the distribution of the sale proceeds to St. Stephens. On the other hand, Wesley argued that he was using the house as a primary residence and that the will had granted him a life estate.

The Superior Court found that the will granted Wesley a licence, not a life interest, to occupy the house. According to the will, the licence would expire if he was “no longer living in the house,” but this description should be declared void for uncertainty, with the result that the entire gift of the house to Wesley had failed. The court thus ordered the estate trustee to sell the house and to pay the sale proceeds to St. Stephens.

The main issue revolved around the interpretation of the will with respect to the nature of Wesley’s proprietary interest in the house, as granted by the will. The court said the will should be construed to give Wesley a licence to occupy the house subject to a condition subsequent, and should not be considered a life estate that would give Wesley a vested life interest in the house.

To reach this decision, the court considered the evidence of the relevant surrounding circumstances at the time that Barsoski made her will. The court rejected the evidence that there was a subsequent unexecuted will that provided a time period for Wesley to move into the house.

The terms of the fund in the will supported the conclusion that Baroski intended to provide a licence, not a life interest, because the fund was not solely dedicated to the costs of maintaining the house.

Regarding the issue of the clarity of the conditions of Wesley’s interest in the house, the court said that the phrase “no longer living” causes such uncertainty that it should render the condition subsequent void for uncertainty. The will’s terms did not explain what it would mean to live in the house.

Because Wesley has a licence, not a life interest, to occupy the house, the licence has now ended because the determining event has been declared invalid due to uncertainty, the court said.

A blog post by NULaw discussing the case said that “in many cases, we see that the interpretation of seemingly simple language can lead to litigation when the parties can’t agree on what the testator intended in their instructions.”