The decision of the Ontario Superior Court of Justice in Barsoski v Wesley found that unclear language in a Will resulted in a condition subsequent being void for uncertainty, which caused a beneficiary to lose his right to a gift of property. We previously blogged on this matter here.
The decision was recently reversed in part at the Ontario Court of Appeal.
Diane Barsoski died in June 2017. She and the appellant, Robert Wesley, were close long-term friends, though they were never romantically involved. Diane was very generous to Robert in her Will: in addition to a specific legacy of $250,000, she directed that Robert be permitted to live in her home during his lifetime. The Will stated as follows:
“Upon the earlier of [Robert] advising my Trustees that he no longer wishes to live in the House, [Robert] no longer living in the house, and [Robert’s] death, the House shall be sold and the proceeds shall be delivered to St. Stephen’s Community House to be used by the highest priority needs as determined by the board of directors.”
Additionally, Diane provided that $500,000 was to be held in trust for the maintenance of the home and in the event that Robert “is no longer able”, or no longer wished to live in the house, the money was to be used for his living expenses, nursing or retirement home expenses, or all funeral expenses. Any amount remaining after his death was to be delivered to St. Stephen’s Community House.
After Diane’s death, a private investigator retained by St. Stephen’s gave evidence that Robert was not living in the home on a full-time basis. The charity therefore requested that the home be sold pursuant to the terms of the Will. The Estate Trustee sought direction from the Court.
The application judge determined that Robert was given a licence and not a life interest. In determining the type of interest, she placed significant weight on the fact that Robert was Diane’s friend and not her partner. Her Honour further went on to find that the condition that Robert live in the home was uncertain and, because of the nature of his interest, the entire bequest failed. After reaching this conclusion, the application judge observed that, had the Will conveyed a life interest to Robert, the condition would fail and his interest in the house would survive without the condition.
The issues on appeal were:
1. Whether the trial judge erred in finding that the bequest in issue was a licence rather than a life interest; and
2. Whether the condition that the appellant live in the house was void for uncertainty.
The appeal was allowed in part. Justice Harvison Young, writing for a unanimous Court of Appeal, found that: (i) Robert’s interest in the house was a life interest and not a licence, and (ii) the limiting conditions subsequent were void for uncertainty, such that the gift survived without the limiting terms.
The Court of Appeal particularly noted that the application judge erred by distinguishing this case from those in which life interests were granted to a spouse or common-law partner. Justice Harvison Young cited the dissenting reasons in Canada (Attorney General) v. Mossop that “The traditional family is not the only family form, and non-traditional family forms may equally advance true family values.” Further, she referred to Julien D. Payne and Marilyn A. Payne, the authors of Canadian Family Law, 8th ed. (Toronto: Irwin Law, 2020), who wrote that “[f]amily relationships can exist when there is neither marriage nor a parent child ancestral relationship. Unmarried couples of the opposite sex or same sex may be regarded as members of the same family for social or legal purposes.”
In short, there is no presumption favouring a licence over a life interest when the intended beneficiary is a friend.
Justice Harvison Young also opined that the application judge had not erred in concluding that the words of the Will created a condition subsequent, and that the condition was void for uncertainty because it is impossible to define, on the terms of the Will, what it means to “live” in the house.
Relying on Powell v. Powell, the Court of Appeal found that if a subsequent condition contained in a grant of a life interest is found to be void for uncertainty, then the gift would be effective without the limiting condition.
Thank you for reading,