In Barsoski v. Wesley, an issue arose concerning the interpretation of a will to determine a beneficiary’s interest in the deceased’s home. Diane Barsoski (“Ms. Barsoski”) made a will on December 15, 2016 (the “Will”) which provided that her house and its contents were to be held for her friend, Robert Wesley (“Mr. Wesley”), to use during his lifetime. The Will also established a fund of $500,000.00 for Mr. Wesley’s benefit, to ensure that the home was professionally maintained at no expense to him while he occupied the house.
The Will provided that if Mr. Wesley was no longer living in the home, the fund was to be used for his living expenses, nursing or retirement home care, or funeral expenses. Importantly, the Will also provided that if Mr. Wesley was “no longer living in the house” that the house and its contents be sold, and the proceeds added to a gift to another beneficiary under the Will, the charity St. Stephens House of London (the “Charity”)
Ms. Barsoski died on June 28, 2017. Beginning around December 2017, a question arose as to whether Mr. Wesley was actually living in the house as required by the terms of the Will. A private investigation funded by the Charity revealed that Mr. Wesley continued to work full-time in Toronto while an acquaintance of his was living in the home. Further, Mr. Wesley started a full-time job in Sault Ste. Marie in November 2019.
The Estate Trustee commenced an application seeking the court’s direction with respect to the following issues:
- whether the terms of the Will granted Mr. Wesley a licence to live in the home or a life estate; and
- whether the licence or life interest had expired given that Mr. Wesley had not been living in the home as contemplated by the Will.
In the alternative, the Estate Trustee inquired as to whether the determining event, “no longer living in the home,” was void for uncertainty.
Licence or Life Interest?
The court found that the Will granted Mr. Wesley a licence to occupy the home and not a life interest. In its reasons, the court noted that a licence with respect to real property is a privilege to go on the premises for a certain purpose, but does not operate to confer on, or vest in, the licencee any title or estate in such property. On the other hand, the holder of a life estate has the right to immediate possession of the property and to its use as the owner, subject to some restrictions to protect the rights of the person entitled to the property at the end of the life estate.
In reaching its decision, the court considered evidence of the circumstances that were present at the time Ms. Barsoski made the Will. The court rejected evidence of a subsequent unexecuted will that imposed stricter periods for Mr. Wesley to move into the house. It did so on the basis that this evidence could not conclusively speak to Ms. Barsoski’s intentions with respect to the disposition of the house and that the evidence was not contemporaneous with the circumstances that existed at the time the Will was made.
According to the Will, the licence would expire if he was “no longer living in the house”. In reaching its decision, the court cited Moore v. Royal Trust Co. In that case, it was determined that the legal estate of the house was in the trustee subject to the obligation to permit the respondent to live in the house. As such, the court held that the gift of the house was not simply for Mr. Wesley’s lifetime, but for such shorter time as he desired or if he no longer lived in the house.
Mr. Wesley argued that the existence of the $500,000.00 fund for maintenance supported his argument that the Will provided him with a life interest in the house. However, the court rejected this argument as the fund was for a fixed amount and broadly provided for Mr. Wesley’s living expenses irrespective of where he lived for the remainder of his lifetime. As such, the court held that this fund contributed to a finding that Ms. Barsoski’s intention was to provide Mr. Wesley with a licence to use the home and not a life interest.
Void for Uncertainty?
The issue before the court was whether the determining event in the Will, that being “Robert no longer living in the home” was void for uncertainty.
There was no dispute that this term imposed a condition subsequent on the grant of the house of Mr. Wesley. In reaching its decision, the court relied on McColgan Re, which stands for the principle that a condition subsequent is void for uncertainty if the condition is “far too indefinite and uncertain to enable the court to say what it was that the testator meant should be the event on which the estate was to determine.”
On this basis, the court as satisfied that “no longer living” created uncertainty such that the condition subsequent was invalid. The court noted that it would be impossible to define, on the terms of the Will, what it meant to “live” in the house. The terms did not explain what Mr. Wesley needed to demonstrate to show that he was “living” in the house.
If the Will provided Mr. Wesley with a life interest, the gift of the house would have taken effect without limiting conditions. However, because the court found that the Will provided Mr. Wesley with a licence, the condition subsequent failed for uncertainty and the gift of the house was void. As a result, the court ordered the Estate Trustee to sell the home and its contents and that the proceeds of same be paid to the Charity.
Careful consideration needs to be given to the wording of bequests in a will. As this case demonstrates, what seems simple and straight forward at the moment a will is drafted can result in significant problems when the testator is no longer around to explain what he or she actually intended.
 Barsoski v. Wesley, 2020 ONSC 7407.
This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.