In Kirst Estate (Re), 2020 ABCA 233 (CanLII), the Alberta Court of Appeal considered the meaning of a clause in a will allowing a beneficiary to live in a house “for a while”.
There, the deceased died in 2010. He left a handwritten will that left his estate to his 7 surviving children. The will stated that one of his children, Whitehorn, “can live in the house for awhile, to be determined by Him and his brothers + sisters.”
A trial of the issue of the meaning of “awhile” was ordered. The trial judge, after a 2 or 3 day trial, did not actually make a determination of what “awhile” meant. The case was decided on another ground. The court considered “ample extrinsic evidence about the testator and his family”, and concluded that Whitehorn did not have a right to live in the home indefinitely. The trial judge reasoned that Whitehorn received a conditional gift in that he could live in the house subject to the condition that the gift would terminate at a date to be agreed by all of the siblings. As the siblings could not agree, the condition under which Whitehorn could remain in the home failed. “In summary, I conclude that the intention of the testator, as expressed in the will properly interpreted, was to give to Whitehorn a conditional gift, subject to the express condition that Whitehorn and his siblings would agree on the period of time that Whitehorn could remain in the home. That condition cannot be satisfied. While it was reasonable for Whitehorn to remain in the home after his father’s death and until this determination was made, he must now vacate the home within a reasonable time … .”
The trial judge directed the matter to the case management judge to determine a reasonable time for Whitehorn to vacate the house.
The estate has taken “awhile” to work its way through the courts. As stated, the deceased died in 2010. The trial to determine the question of the meaning of “awhile” was held on September 4 and 5, 2019. The trial decision was released on October 9, 2019. On February 26, 2020, the case management judge ordered that Whitehorn vacate the home on April 30, 2020. The case management judge’s order was stayed pending an appeal of the trial judge and case management judges’ decisions. The appeal were dismissed in June 2020. Whitehorn was ordered to vacate the home by August 31, 2020. An order that the house be sold was made on September 22, 2020. This was appealed and the appeal was dismissed on March 14, 2022. As noted by the Court of Appeal in the 2022 decision, the parties have been engaged in dispute over the will since 2010. The Court of Queen’s Bench had granted 17 orders, and the matter was appealed to the Court of Appeal three times. The only substantial asset of the estate was the house.
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