Court of Appeal for Ontario
Date: 20220517 Docket: C68994
Simmons, Harvison Young and Zarnett JJ.A.
In the Matter of the Estate of Diane Barsoski, deceased
BETWEEN
Susan Ann Carlyle, Estate Trustee of the Estate of Diane Barsoski Applicant (Respondent)
and
Robert Wesley Respondent (Appellant)
Counsel: Dagmara Wozniak, for the appellant Lou-Anne F. Farrell, for the respondent
Heard: February 24, 2022, by video conference
On appeal from the judgment of Justice Kelly Tranquilli of the Superior Court of Justice, dated November 30, 2020, with reasons at 2020 ONSC 7407.
Harvison Young J.A.:
[1] Diane Barsoski died in June 2017. She and Robert Wesley, the appellant, were close long-term friends although they were never romantic partners. In her will, she was very generous to him. In addition to some other bequests, she provided that the trustees were to hold her home and contents “as a home” for the appellant during his lifetime “or for such shorter period as [he] desires”. It went on to provide that
Upon the earlier of [the appellant] advising my Trustees that he no longer wishes to live in the House, [the appellant] no longer living in the house, and [the appellant’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.
[2] The will also provided that $500,000 would be held in trust for the maintenance of the home and, in the event that the appellant “is no longer able” or no longer wished to live in the house, 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.
[3] After Ms. Barsoski died, a question arose as to whether the appellant was in fact “living” in the home as required by the will. A private investigation funded by St. Stephen’s revealed that the appellant had continued to work full time in Toronto while his acquaintance was living in the London home. In November 2019, the appellant started a full-time job in Sault Ste. Marie. He maintained that he used the home as his primary residence for matters like his driver’s licence and income tax, and spent his weekends there once or twice a month. St. Stephen’s took the position that the appellant had not been living in the home, that it should therefore be sold, and the proceeds distributed to the charity. The estate trustee, Ms. Carlyle, brought an application to determine the nature of the proprietary interest in the home granted to the appellant, and whether the conditions on his interest in the home were clear and unambiguous or void for uncertainty.
[4] The appellant never “lived” in the house before Ms. Barsoski’s death in 2017, although he was a frequent visitor. His evidence was that he intended to live there after he retired which he anticipated to be in 2021. In the meantime, he needed to maintain an income. He testified that he had applied for a job in Toronto shortly before Ms. Barsoski’s death, which she had enthusiastically supported.
[5] The application judge determined that the interest bequeathed to the appellant was a licence and not a life interest. She went on to find that the condition that the appellant live in the home was uncertain and, because of the nature of his interest, the entire bequest failed.
[6] The two issues in this appeal are, first, whether the trial judge erred in finding that the bequest in issue was a licence rather than a life interest and, second, whether the condition that the appellant live in the house was void for uncertainty. The appellant submits that the will confers a life estate that takes effect free and clear of any conditions. The respondent argues that the will grants a licence, and that the appellant has breached its terms by living outside the home.
[7] In my view, while the application judge correctly found that the condition was void for uncertainty, she erred in her finding that the bequest was a licence rather than a life interest. For the following reasons, I would allow the appeal.
(1) The decision below
[8] The application judge began with the nature of the appellant’s interest, noting his submission that the will constantly refers to him using the property as his “home” during his lifetime. She summarized the factual context to the bequest to the appellant as follows, at para. 24 of her reasons:
The uncontroverted evidence on this application is that at the time she made her will, Ms. Barsoski and [the appellant] were close friends for approximately 25 years. The [appellant] lived and worked in Toronto. He owned a vacation property in Florida but did not own a home in Toronto. The house was important to Ms. Barsoski and she wanted someone to live in it after her death. Although there is a dispute on the details of their discussion, there is no dispute that the [appellant] and deceased discussed his retirement plans and whether he would come to live in Ms. Barsoski’s house after she died. Four of her other friends received generous bequests and gifts of jewelry under her will. The will also directed that the lesser of $500,000 or the residue of her estate be distributed to the charity St. Stephens. This is in addition to charity also receiving the proceeds of the sale of the home and any money remaining in the trust fund following the appellant’s death. It is evident that St. Stephens was an important charity to Ms. Barsoski.
[9] At para. 19 of her reasons, the application judge summarized the difference between a life interest and a licence:
A licence is the permission by competent authority to do an act that, without permission, would be a trespass. A licence with respect to real property is a privilege to go on premises for a certain purpose, but does not operate to confer on, or vest in, the licencee any title or estate in such property. 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. Rights to use and transfer the property are restricted by the terms of the grant and the common law doctrine of waste. Life tenants are ordinarily responsible for current expenses and routine maintenance. [Citations omitted.]
[10] At para. 20, the application judge referred to some examples of testamentary phrases conveying estates:
These cases included examples such as: “shall have the right to the occupation, possession and use of my house … for as long as she remains in possession of the said premises,” Powell v. Powell (1988), 62 Alta. L.R. (2d) 379 (Q.B.); “to permit my son … so long as either of them shall occupy the same to have the use an enjoyment of my property,” Moore et al. v. Royal Trust Co. et al., [1956] S.C.R. 880; “to hold my property … as a home … until her death or until she is not residing therein personally” Re McColgan, [1969] 2 O.R. 152 (H.C.).
[11] As she correctly noted, “there is no overarching principle that reconciles the results in these decisions”: Kaptyn Est., (Re), 2010 ONSC 4293, 102 O.R. (3d) 1, at para. 32. At para. 22, she articulated the principles governing the interpretation of wills:
The prevailing approach to will interpretation requires a court to concentrate on the subjective meaning of the words used by a testator in her will. A court should consider the words used in light of the surrounding circumstances, consider other admissible evidence and give the words placed in a will the meaning intended by the particular testator. Technical legal words are likely to be assigned their technical meaning where they have acquired a fixed meaning in law. A court should put itself in the place of the testator at the time she made her will and concentrate on the circumstances which then existed, and which might reasonably be expected to influence the testator. Direct evidence of a testator’s intention generally is considered inadmissible, whereas indirect extrinsic evidence may be used by a court to explain what the testator wrote, but not what she intended to write. Admissible indirect evidence of surrounding circumstances includes such matters as the character and occupation of the testator, the amount, extent and condition of her property, the persons who comprised her circle of friends. [Citation omitted.]
[12] Ultimately, the application judge determined that the will grants a licence and not a life interest to the appellant. She concluded as follows on this point:
Having considered the terms of the will in conjunction with the admissible evidence as to the surrounding circumstances at the time Ms. Barsoski executed her will, I am satisfied that the proper construction of the grant of the home is that the will gives the [appellant] a licence to occupy the house as opposed to a vested life interest in the house. This was a grant of an interest to a friend, not a spouse or common law spouse, which distinguishes it from many of the decisions relied upon by the respondent. [Emphasis added.]
[13] The application judge went on to consider whether the determining event on the respondent’s interest in the home was “clear and unambiguous” or “void for uncertainty”. The determining event is described in the will as:
Upon the earlier of [the appellant] advising my Trustees that he no longer wishes to live in the House, [the appellant] no longer living in the House, and [the appellant’s] death, or if [the appellant] predeceases me….
[14] She continued to summarize the issue as follows at paras. 30 and 31 of the reasons:
The issue is whether the determining event, “[the appellant] no longer living in the home” has occurred such that his interest in the property has ended or is it void for uncertainty. He uses the home as his “primary residence”, stays in the house one or two weekends per month and intends to live there full-time on his retirement. Is he “living” in the home or “no longer living” in the home?
There was no dispute that these terms impose a condition subsequent on the grant of the house to the respondent. 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”: McColgan Re, [at p. 580].
[15] The application judge was satisfied that the terms “no longer living” created uncertainty such that the condition was invalid because it is “impossible to define, on the terms of this will, what it means to ‘live’ in the house.” She reasoned that the limiting phrase raised questions as to how long the appellant can be absent or by what date or for how long he must occupy the home to be considered to be “living” in the house. She relied on a number of authorities in support of her conclusion that such conditions are void for uncertainty, including Re McColgan, Re Down (1968), 68 D.L.R. (2d) 30 (Ont. C.A.) at pp. 37-38, and Sifton v. Sifton, [1938] 3 D.L.R. 577 (P.C.) at p. 588.
[16] After reaching this conclusion, the application judge observed that if the will conveyed a life interest to the appellant, the condition would fail and his interest in the house would survive without the condition. However, having found that the respondent’s interest was a licence, the licence failed along with the condition subsequent: Powell v. Powell, at p. 6.
(2) The parties’ submissions
[17] The appellant’s central argument is that the application judge fell into palpable and overriding error in determining that Ms. Borsoski intended to grant him a licence in her house as opposed to a life interest. In addition, he argues that she erred in concluding that because the will grants a licence rather than a life interest, the entire gift failed due to the uncertainty of the condition.
[18] With respect to the application judge’s characterization of the gift as a licence, the appellant submits that the language in the will is consistent with a grant of a life interest. He also argues that the application judge “unduly placed weight on the fact that [the appellant was] a friend of [Ms. Barsoski’s] and not a spouse”, and that according to many authorities “it matters not whether [the appellant] is a close family friend or spouse”. Moreover, he argues that, in finding that the entire gift fell with the uncertain condition, the application judge confused terms such as determining events and conditions subsequent.
[19] The respondent estate trustee argues that the application judge correctly cited and applied the appropriate legal principles to the distinction between a licence and a life interest “or at least [reached] a reasonable conclusion which did not reflect any palpable and overriding error”. With respect to the consequences of the distinction on the effect of a condition void for uncertainty, she submits that to the extent that the application judge may have used imprecise language or conflated the principles that apply to the extinguishment of a licence as opposed to a life interest, this did not impact the result.
[20] For the following reasons, I would allow the appeal on the basis that the trial judge fell into legal error in reaching the conclusion that the interest bestowed was a licence rather than a life interest. I would also conclude that she correctly characterized the condition as a condition subsequent which was void for uncertainty.
(3) Law and Analysis
[21] The parties agree that the application judge correctly articulated the four fundamental and oft-cited principles that govern the interpretation of wills:
(i) a will must be interpreted to give effect to the intention of the testator. No other principle is more important than this one;
(ii) a court must read the entire will, as a whole. The words used in the will should be considered in light of the surrounding circumstances (also known as the “armchair rule”);
(iii) a court must assume that the testator intended the words in the will to have their ordinary meaning; and
(iv) a court may canvas extrinsic evidence to ascertain the testator’s intention.
[22] As the principles enunciated above recognize, the same words and gifts in different wills with different contexts may be, and have been, interpreted both as licences and life interests. The cases, in this respect, are irreconcilable, as many of them recognize: Kaptyn Estate, at para. 32. For example, in Moore v. Royal Trust Co., a grant of “use and enjoyment” was found to grant a licence, while the same words were found to create a life estate in Re McLean, [1941] 1 D.L.R. 722 (N.B.S.C., A.D.).
[23] The challenge for any judge interpreting a will is the fact that the case law is of limited assistance precisely because of the importance of the testator’s own intentions and of the wide range of factors that may be taken into account in discerning those intentions. While the authorities generally cite the same accepted principles, they often reach apparently irreconcilable results.
[24] On the distinction between life interests and licences, the application judge summarized the cases as follows:
These decisions alternately concluded that the grants of the property were a life estate or a licence. Counsel agreed that there is no overarching principle that reconciles the results in these decisions. Since the meaning of words in wills can differ so much according to the context and circumstances in which they are used, it seldom happens that the words of one instrument are a safe guide in the construction of another. Each case is an authority only on the facts involved, except in so far as it may set forth or explain any applicable rule of construction or principle of law: Kaptyn Estate, Re, at para. 32.
[25] The application judge ultimately rested her conclusion that the will grants a licence on three pillars, two textual and one contextual.
(i) Interpretation of the text
[26] At para. 26, the application judge concludes that the provisions in the Barsoski will are “similar to the grant in Moore v Royal Trust Co.” While acknowledging that similarly worded wills have little precedential value, she saw the fact that the property vests in the trustee rather than the appellant as relevant to Ms. Barsoski’s intention.
[27] Moore remains the only Supreme Court of Canada decision with respect to the distinction between a life estate and a licence. The testator granted the “use and enjoyment” of his property to his son and daughter-in-law “as long as either of them shall occupy the same”. Cartwright J., delivering the opinion of the court, held that the will granted a licence and not a life interest, largely because the will vested the property’s legal estate in the estate trustees, rather than the beneficiaries.
[28] However, as Kent J. stated in Lecky Estate v Lecky, 2011 ABQB 802, 52 Alta. L.R. (5th) 295, at para. 152:
[S]everal cases considering Moore have found life estates to exist instead of licenses, where the use of a home and contents is granted for life, even where the word “life” was not used. [Citations omitted.]
[29] In Lecky, the court held that the interest bestowed was a life estate, not a licence, because the property was to be held in trust for the beneficiary’s lifetime, and she was entitled to the use of its effects until her death. Significantly, as I will come back to below, the contextual factors existing at the time the will was made pointed to an expansive interpretation of the gift consistent with a life interest.
[30] The application judge, having recognized the challenges in reconciling the cases on the basis of the wording in the will, relied on the fact that the Barsoski will, like that in Moore, directed the trustees the “hold” the house for the appellant’s benefit: the will could not grant an estate to the beneficiary because it was already vested in the trustees. However, this is not a factor that has been determinative in many other subsequent cases, including Re McColgan.
[31] There, the testator instructed his trustees to hold his property as a home for the beneficiary “until her death or until she is not residing there personally”. The testator and the beneficiary had “long been great and good friends”, and had frequently discussed the prospect of marriage. They had met when the testator was a doctor in Pennsylvania, and the beneficiary was his patient. The testator moved to Toronto when he retired, and the beneficiary visited him there for months at a time. During those periods, the beneficiary had supervised the household, cooked for the testator and increasingly nursed him as he became ill. However, she had continued to spend significant periods of time in Pennsylvania, particularly, it seems, for her own medical care. Here too, the issue was whether the gift was a licence or a life interest.
[32] Despite the fact that the will granted legal title to the trustees, Keith J. found that the will created a life estate because its language went “far beyond what one would deem appropriate to the creation of a mere personal licence.” He noted that the obligation placed on the trustees, particularly to hold the property as a “home”, was much more consistent with granting the beneficiary an interest in the property than with a mere permission to occupy.
[33] Keith J. referred to Re McLean, to the same effect. In that case, the testator directed that his trustees and executors allow his daughter to “occupy and enjoy” his property and its effects “for her life or for such shorter period as she wishe[d]”. Harrison J., for a majority of the court of appeal, found that “there is ample authority that such words convey a life estate.” Accordingly, the fact that the property subject to the interest is held by the trustees according to the will is not treated as a determinative or even a significant factor: see e.g., McKay v. Henderson Estate, 113 N.B.R. (2d) 308 (Q.B.); Lecky, at para. 152.
[34] The second textual factor relied on by the application judge is the existence of a $500,000 fund for the maintenance of the home. The appellant argued below that this supported his argument that the gift was of a life interest, citing McColgan. However, the application judge distinguished this case from McColgan on the basis that the fund is for a fixed amount and “broadly provides” for the maintenance of the house and his living expenses irrespective of where he lives for the remainder of his lifetime, whether in the house, a retirement home or a nursing home. She concluded that this provision was therefore more consistent with a licence than a life interest.
[35] I do not see how this factor is deserving of any significant weight for two reasons. First, the will contemplated, as the evidence before the application judge indicated, that the appellant would not have significant income after retirement and would likely need funds to properly maintain the home. The fund’s primary purpose was therefore to maintain the home for the appellant’s lifetime as long as he resides there. Second, there is no indication that the proceeds of renting the home in the event that he needed in the future to move into some form of institutional care in the future would have been sufficient to pay his expenses if and when they arose. Accordingly, the fund reinforces Ms. Barsoski’s commitment to giving the appellant a home, whether he was well enough to live in her home or not. This second textual factor begs the question of whether the gift was a licence or a life interest.
[36] The application judge, as is often the case when judges are called upon to interpret such testamentary provisions, faced a daunting task. Having recognized that the case law distinguishing the wording in such provisions is “irreconcilable”, she focused on the two elements above in support of her conclusion that this was a licence rather than a life interest.
[37] In my view, and with respect, she committed a palpable and overriding error in doing so. These factors did not aid in giving effect to the intention of the testator which is, of course, the overarching purpose of the interpretation of a will. As I explain below, these errors were exacerbated by her treatment of the case law as supporting a distinction based on marital or family status.
(ii) Contextual interpretation
[38] It is easier to reconcile the cases, or at least their ultimate results, when one considers the contextual interpretation of the will in the characterization of certain gifts as either licences or life interests. In recent years, courts have increasingly and expressly recognized the important and often determinative significance of the contextual factors when determining whether such gifts grant licences or life interests.
[39] In Lecky, for example, Kent J. noted, at para. 153, that:
In finding a life estate to exist, case law also appears to give weight to the fact that the testator had resided with his wife in the property, just as Mr. and Mrs. Lecky had. When this is the case, it is likely that the testator intended that she have the right to continue to occupy the property after his death, for the duration of her life. In Re McColgan, the Court considered the particular language of the will, “in the context of the particular circumstances of the testator, beneficiaries and the estate itself”: para 22. Accordingly, a determination of whether Mrs. Lecky was granted a life estate or a licence requires both a contextual analysis and an examination of the language used in the Will. [Citation omitted; emphasis added.]
[40] The Moore case, as I have noted, has been cited as authority that vesting the property in the trustee creates a licence. In that case, the challenge for the courts (including the courts below which had both reached different conclusions: , [1954] 3 D.L.R. 407 (B.C. S.C.); , [1955] 4 D.L.R. 313 (B.C. C.A.)) was that, while the beneficiaries had been living in the house when the will was made, by the time the testator died and the dispute arose, the son and his wife had moved to Westview to pursue employment. They then moved to White Rock because of their daughter’s ill health.
[41] Interestingly, while finding that the grant was of a licence not a life interest, the court went on to find that the gift was not defeated because the son and his wife lived outside the house for a few years before the testator’s death. Writing for the majority of the court, Cartwright J. stated “I do not think that the words ‘so long as’ … necessarily require continuous occupation … as a condition of their being entitled to the permission given by the clause, but rather that the testator has used these words as the equivalent of ‘while’ or ‘during the time that’ or ‘during the time as’”: at p. 884.
[42] For present purposes, the point is that while the Supreme Court applied the text of the gift quite strictly and literally for the purposes of determining whether it was a licence or a life interest, it applied a much more contextual interpretation to the meaning of whether the clause “necessarily” required continuous occupation, and found that the appellants’ absence for several years did not bring about a forfeiture of their rights as licencees.
[43] Indeed, the context surrounding testamentary bequests often weighs heavily on the court’s interpretation. In McColgan, for example, Keith J. found that a life estate was “much more consistent in the circumstances peculiar to this will and the persons involved”: at p. 578. In McKay v. Henderson, Stevenson J. interpreted a testamentary gift according to its terms, “the relationships and the circumstances of the parties”: at p. 316. Thus, the context or circumstances frequently provide the distinctions that the words of the will cannot reconcile.
[44] Here, the application judge reviewed the case law carefully and was clearly conscious of the difficulties in reconciling the authorities by simply interpreting the document. She looked to contextual factors as well, stating as follows at para. 28:
Having considered the terms of the will in conjunction with the admissible evidence as to the surrounding circumstances at the time Ms. Barsoski executed her will, I am satisfied that the proper construction of the grant of the home is that the will gives the respondent a licence to occupy the house as opposed to a vested life interest in the house. This was a grant of an interest to a friend, not a spouse or common law spouse, which distinguishes it from many of the decisions relied upon by the respondent. [Emphasis added.]
[45] This final point appears to be the determinative factor in her reasons for concluding that the gift was a licence or a life interest. As I have set out, contextual factors are important and, in cases such as this it is critical to consider them. In my view, however, the application judge erred in principle by distinguishing this case from those in which interests were granted to “a spouse or common law spouse” rather than a “friend”.
[46] This constitutes a serious and extricable legal error, for a few related reasons. First, it fails to give effect to the evidence that the testator and the appellant were very close friends who regarded each other as family. This evidence was noted by the trial judge and was not disputed by the parties. In particular, the appellant affirms that Ms. Barsoski advised him that he could live in her house on his retirement “to remember her love for the rest of [his] life”. Indeed, Ms. Barsoski’s will directs that her remains be interred beside a plot reserved for the appellant.
[47] Second, in excluding the appellant’s relationship with Ms Baroski from the categories of family members such as spouses or children as in Moore, the application judge relied on and arguably contributed to the perpetuation of a now outmoded and exclusionary view of family. As L’Heureux-Dubé (dissenting) wrote in Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, at p. 634, “[t]he traditional family is not the only family form, and non-traditional family forms may equally advance true family values.” Julien D. Payne and Marilyn A. Payne, the authors of Canadian Family Law, 8th ed. (Toronto: Irwin Law, 2020), point out, at p. 40., “[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.”
[48] Third, given the uncontested evidence that the testator regarded the appellant as family, there is no reason not to give effect to her choice in this regard. Indeed, testamentary freedom continues to operate as an underlying principle in our law: Spence v. BMO Trust Co. 2016 ONCA 196, 305 D.L.R. (4th) 297, at para. 30. Treating this will differently than it would have been treated had the testator and appellant been romantic partners, spouses or children violates that principle unnecessarily by failing to give effect to the context as the testator saw it.
[49] Fourth, the application judge’s decision effectively ignores that courts have given effect to life interests to friends: see e.g., Coutts, Re, 1977 CarswellOnt 2186 (S.C.), at para. 9. In this modern age, and given the other considerations I have just reviewed, there is no basis for any presumption favouring a license rather than a life interest when the intended beneficiary is a friend.
[50] For these reasons and considering both the textual and contextual reasons given by the application judge, I would conclude that she erred in law in concluding that this gift was that of a licence rather than a life interest.
(4) Was the condition void for uncertainty?
[51] The appellant argues that the application judge confused or conflated the principles applicable to licences, determinable estates and life estates subject to conditions subsequent. However, he does not submit that, assuming, as I have found, the will created a life interest, the application judge erred in finding that the terminating event was a condition subsequent which was void for uncertainty.
[52] The respondent, while acknowledging that the application judge may have used imprecise language or conflated the principles that apply to the extinguishment of a licence as opposed to a life interest, submits that this did not affect the result. She further acknowledges that the distinction between a condition subsequent and a determining event is “murky at best”, but submits that “[i]f a terminating event is an integral part of the gift, the interest created is likely to be considered ‘determinable’”, giving examples of the presence of wording such as “during”, “while”, “so long as”, as well as the close proximity of the gift and the restriction in the same phrase or sentence. Conversely, a condition subsequent is one where the gift is “external to the limitation”: Re Essex County Roman Catholic School Board and Antaya (1977), 80 D.L.R. (3d) 405 (Ont. H.C.), at p. 410.
[53] The respondent argues that the following words, which appear in a separate sentence after the granting words, tend to indicate a condition subsequent:
Upon the earlier of [the appellant] advising my Trustees that he no longer wishes to live in the House, [the appellant] no longer living in the House, and [the appellant’s] death, or if [the appellant] predeceases me … the House shall be sold.
[54] The respondent also states that there are limitations built into the initial part of the gift that “could” indicate a determinable interest. For example, the will reads “as a home for [the appellant] … during his lifetime or for such shorter period as [the appellant] desires”. She submits that the requirement that the appellant live in the home could be construed as an integral and necessary part of the formula from which the size of his interest is to be ascertained.
[55] The application judge, in my view, did not err in concluding that the words in issue created a condition subsequent. She noted that there was no dispute before her that these terms were “external to the gift”, and this interpretation is supported by contextual considerations, including the fact that the appellant had never actually resided in the house before the testator’s death, although he was a frequent visitor. The admissible evidence supports the inference that the testator, given her knowledge that the appellant would have to continue to work until retirement and that he would not necessarily be living in the home immediately upon her death given that his employment was unlikely to be in London, contemplated that these terms were subsequent to the vesting of the gift. Accordingly, the condition must be construed as a condition subsequent because she could not have intended that her gift would come to its natural end as soon as it vested.
[56] Nor do I see any error in the application judge’s conclusion that the condition is void for uncertainty. At para. 31 of her reasons, she stated that
A condition subsequent is void for uncertainty if the condition is “far too indefinite and uncertain to enable the Court to say what is was that the testator meant should be the event on which the estate was to determine”: McColgan Re, supra at para. 35
[57] She continued at para. 32:
I am satisfied that the terms “no longer living” creates uncertainty such that the condition subsequent is invalid. It is impossible to define, on the terms of this will, what it means to “live” in the house. The terms do not explain what the respondent needs to demonstrate that he is “living” in the house or when he must establish that act. As noted by the respondent, this limiting phrase raises questions as to how long he can be absent or by what date or for how long he must occupy the home to be considered be “living” in the house. The problems with terms such as these are exemplified by the decisions relied upon by both parties, which concluded that such conditions requiring a beneficiary to live, reside, remain or stay on a property are void for uncertainty. [Citations omitted.].
[58] There is no dispute that if a subsequent condition contained in a grant of a life interest is found to be void for uncertainty, the gift is effective without the limiting conditions: Powell v. Powell, at para. 14. As I noted above, a condition subsequent is not integral to the interest and, therefore, the gift can exist without the condition. Accordingly, the uncertain condition is struck, and the gift survives free and clear of any condition.
(5) Disposition
[59] The appeal is allowed in part. The interest in the house was a life interest and not a licence. The limiting terms were conditions subsequent which were void for uncertainty and the gift therefore subsists without the limiting terms.
[60] The appellant does not ask for costs, and I would award none. However, the respondent comes before this court at the behest of a beneficiary who has chosen not to participate in this litigation. It would seem unjust to force a respondent who appears before us according to the duties of her office to do so from her own coffers. Accordingly, I would award costs of $6,500 to the respondent, inclusive of disbursements and HST, to be paid from the estate.
Released: May 17, 2022 “J.S.” “A. Harvison Young J.A.” “I agree Janet Simmons J.A.” “I agree B. Zarnett J.A.”
