Laura Theresa Cardiff

The Court of Appeal for Ontario dismissed the appeal concerning the interpretation of a will provision granting an option to purchase a townhouse.

The court upheld the application judge’s finding that the option was properly exercised within the required time and that the will’s terms were sufficiently certain.

The court also rejected arguments regarding the necessity of a separate agreement of purchase and sale and the relevance of the parties’ subsequent conduct.

Costs were awarded as agreed.

This application sought the court's opinion and direction on the interpretation of a deceased's handwritten will.

The primary issues were whether a residual gift to the testator's sons was conditional on the testator and his wife dying during a specific trip, and the effect of a subsequent clause regarding the distribution of cash assets and memorabilia.

The court applied the "armchair rule" to ascertain the testator's subjective intention, concluding that the residual gift was not conditional and that the subsequent clause was void for repugnancy as the estate had already been fully disposed of.

The applicant sought court advice and direction regarding the mental capacity of his wife, the respondent, Anna Naccarato, to manage her property and personal care.

The application also sought the release of a Continuing Power of Attorney for Property (CPOAP) and a Power of Attorney for Personal Care (POAPC) to the applicant, and his appointment as a partial, time-limited guardian of the respondent's person.

The court found the respondent incapable of managing her property and personal care (specifically health care, shelter, and safety) based on anecdotal evidence from family members and section 3 counsel, without requiring a formal capacity assessment.

The court ordered the release of the CPOAP to the applicant and appointed him as partial, time-limited guardian of the respondent's person with custodial and apprehension powers, but declined to order the release of the POAPC due to lack of evidence regarding its release conditions.