When people create wills as a step in their estate planning, they often do so in the hopes of their beneficiaries being able to receive what was given to them with as little a change of litigation as possible. However, 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. Such was the case in a recent decision issued by the Ontario Superior Court of Justice.

A gift left to a friend

The deceased had written a will leaving a generous bequest of $250,000 to her friend, “RW.” In addition to the cash gift, the deceased also instructed that her home and its contents be left to RW for his lifetime. She also provided a fund of $500,000 to cover the maintenance to the home while he occupied it. Should he no longer live in the home, the $500,000 was to be used to pay for his living expenses in a nursing or retirement home, or to cover his funeral expenses. In addition, the will stipulated that if RW is “no longer living in the house,” it shall be sold with its proceeds going to another beneficiary (a charity) under her will.

The deceased passed away in June 2017. By December of that year, the trustee for the estate began to question whether RW was living in the home. The trustee became suspicious after RW asked for the title documents for the home, giving her the impression he thought he could rent out or mortgage the property. RW’s lawyer responded to questions about whether RW was living in the home, stating only that it was “occupied.”

RW told the court that while he worked in a different city full-time, with an acquaintance living in the home, he intended to retire in 2021 and move into the home full-time. In the meantime, he still used the home for income tax and mail purposes.  

What constitutes “living” in a home?

The will stated that the home was to be sold if RW “no longer wishes to live in the House” or is no longer “living in the house.” The question before the court is whether these directions create a life estate for RW or a license for his use of the house. Of course, a license to use the house is much more restrictive than a life estate, allowing use of the home only under specific conditions.

The court decided to look at the intentions of the deceased, noting that ultimately, she wanted her friend to be able to live in the home once he retired. However, she also made it clear that it was to be sold under certain conditions. Because of this, the court considered RW to have a license to use the home, but not a life estate.

Turning to whether RW was living in the home, the court stated that the language in the will was vague. The court said it is “impossible to define, on the terms of this will, what it means to ‘live’ in the house.” The will does not state what RW needs to do to demonstrate that he is living in the house. Because of this, the gift of the license was found to be invalid due to uncertainty. The court directed the estate to sell the home.

Contact NULaw in Toronto to obtain proactive legal advice in a way designed to ensure your loved ones are treated as you intend. Our estate lawyer provides unparalleled personal guidance for all your estate planning needs. Contact us online or at 416-481-5604 to book a consultation today with estate planning lawyer Lex Arbesman.

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