COURT FILE NO.: 19-933
DATE: 20201130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SUSAN ANN CARLYLE, Estate Trustee for the Estate of Diane Barsoski, deceased
Lou-Anne F. Farrell, for the Applicant
Applicant
- and -
ROBERT WESLEY
Dagmara Wozniak, for the Respondent
Respondent
HEARD: August 24, 2020 via teleconference
TRANQUILLI J.
[1] The late Diane Barsoski was generous to her friend, the respondent Robert Wesley.
[2] In addition to a $250,000 bequest, her will dated December 15, 2016 requires her Estate Trustee to hold Ms. Barsoski’s house and contents at 103 Wychwood Court, London, Ontario as a “home” for Mr. Wesley during his “lifetime”. Her will also establishes a fund of $500,000 for respondent’s benefit, to ensure the home is professionally maintained at no expense to the respondent while he occupies the house. If he is no longer living in the home, the fund is to be used for the respondent’s living expenses, nursing or retirement home care or funeral expenses.
[3] If the respondent is “no longer living in the house”, her will directs that the house and contents be sold, and the proceeds added to a gift to another beneficiary under her will, the charity St. Stephens House of London.
[4] Ms. Barsoski died on June 28, 2017.
[5] Beginning in or about December 2017, a question arose as to whether the respondent was, in fact, “living” in the home as required by the terms of the will. Mr. Wesley asked the Estate Trustee for the title documents and appeared to have the impression that he could either rent out or mortgage the home. The respondent later resisted meeting with the Estate Trustee at the home to discuss renovation and maintenance issues. The Estate Trustee later asked him to confirm that he was living in the home in October 2018. His lawyer responded that the residence was “occupied”. A private investigation funded by the beneficiary St. Stephens revealed that Mr. Wesley had continued to work full-time in Toronto while an acquaintance of his was living in the home. In November 2019, the respondent then started a full-time job in Sault Ste. Marie.
[6] The beneficiary St. Stephens submits that the respondent has not been living in the home, such that it should be sold, and the proceeds distributed to the charity, as directed by the terms of the will. The respondent maintains that he is living in the home and uses it as his primary residence. He spends time at the home on weekends once or twice a month and uses it as his address for matters such as his driver’s licence and income tax. He plans to live in the home full-time once he retires in or about July 2021.
[7] Due to the conflict between the beneficiaries, and her obligations as the estate trustee, Ms. Carlyle brought this application as a neutral party to present the issues for the court’s direction. In that context, the applicant raises the question of whether the terms of the will granted the respondent a licence to live in the home or a life estate. Further, has that licence or life interest now expired as he has not been living in the home as contemplated by the will? In the alternative, is the determining event, “no longer living in the home” void for uncertainty?
[8] The respondent argues that the will granted him a life estate in the house. He also submits the condition that the home be sold if he is no longer living there is void for uncertainty. If correct, this means he holds a life interest in the home free and clear of any restrictions, such as being required to live there. However, if it is a licence, the entire gift would fail due to the uncertain terms.
[9] I find that the will created a licence for Mr. Wesley to occupy the home. The description of the determining event, that the licence expires if he is “no longer living” at the home, is void for uncertainty. The result is that the entire gift of the home to the respondent in the will fails.
[10] The issues on this application are:
What is the nature of the proprietary interest in the home granted to the respondent in Ms. Barsoski’s will?
Are the conditions on the respondent’s interest in the home clear and unambiguous or is it void for uncertainty?
[11] The application proceeded on a record of affidavit evidence and cross-examinations on affidavits. The court raised with the parties whether there were credibility issues such that the matter should proceed to a trial with oral testimony. The parties advised that they agreed to proceed by way of the paper record. Any factual disputes could be appropriately determined on the evidence contemporaneous to when the issues first arose. The parties also urged that the application was the most efficient and proportionate resolution of the issues for the parties, particularly due to the size of the estate.
[12] I am satisfied that the application can be determined from the record. The central issue on this application is the interpretation of the will for a determination of the proprietary interest in the home. To assist in the interpretation of the disputed terms, the relevant surrounding circumstances at the time Ms. Barsoski made her will can be considered from uncontroverted evidence.
[13] There are credibility issues arising from some of the evidence, such as the respondent’s discussions with Ms. Barsoski about his retirement plans and the extent of his use of her home following her death. For example, Ms. Barsoski reportedly understood the respondent intended to retire from his job in Toronto and move into her home in London shortly after her death. The bequest of $250,000 was allegedly the amount that he told Ms. Barsoski would allow him to retire. This was argued to demonstrate her expectation and intention that the respondent would move from Toronto and “live” full-time in her home soon after her death. In December 2017, the respondent complained that the estate trustee’s delay in distributing the $250,000 bequest to him was preventing him from retiring and moving to London, as was intended by Ms. Barsoski. On cross-examination, he claimed he only made this statement to spur on the payment and that there was no understanding between him and Ms. Barsoski that he would retire and move into her home in London soon after her death. However, he later acknowledged that the sum of $250,000 is the amount he told Ms. Barsoski he still needed to save in order to retire.
[14] The estate trustee also submitted that little weight should be placed on self-serving evidence that the respondent established after the issue of his occupancy of the home came to light. This would include evidence of his use of that address as his primary residence for income tax, his driver’s licence and health card.
[15] However, this conflicting evidence relates to the interpretation of the meaning of “living” in the home as a term of the will. As I have found that these terms are void for uncertainty, it is unnecessary for me to make findings of fact from the conflicting evidence in order to dispose of the application.
- What is the nature of the proprietary interest in the home granted to the respondent in the will?
[16] The granting words of the will provides that the estate trustee holds the house and its contents “as a home for Robert Wesley (“Robert”) during his lifetime or for such shorter period as Robert desires.” Upon the earlier of the respondent advising the trustees that he “no longer wishes to live in the House, Robert no longer living in the House,” the respondent’s death or the respondent predeceasing Ms. Barsoski, the estate trustee is directed to sell the house and add the proceeds of the sale to a gift to St. Stephens.
[17] The will also establishes a fund of $500,000 for the purpose of professionally maintaining the home while the respondent “occupies” it. If “Robert is no longer able, or does not wish, to live in the House” that sum shall be held in trust until the respondent’s death, to be provided by the trustee to the respondent for his living expenses or used to pay for his nursing or retirement home care and or all funeral expenses. On his death, any amount of money remaining in the trust is to be delivered to St. Stephens.
[18] The question presented by the parties is whether these words create a life estate or a licence for the respondent’s use of the house subject to a condition subsequent. In either case, interest is said to terminate on a future event, when the respondent “no longer living in the home”.
[19] 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: Allen v. Allen, 2001 CarswellOnt 4030 (S.C.J.) at para. 20. 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: Hurst v. Soucoup, 2010 NBQB 216 at para. 22.
[20] Counsel presented numerous cases concerning transfers of estates in wills subject to similar terms as in this case. 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 3533(ABQB); “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 64 (SCC), [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 495 (ONSC).
[21] 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, 2010 ONSC 4293 at para. 32.
[22] 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: Kaptyn Estate, supra at para 33.
[23] The respondent contends that the will grants him a life estate. The will consistently refers to him using the property as his “home” during his “lifetime”.
[24] The uncontroverted evidence on this application is that at the time she made her will, Ms. Barsoski and the respondent were close friends for approximately 25 years. The respondent 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 respondent 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 respondent’s death. It is evident that St. Stephens was an important charity to Ms. Barsoski.
[25] The estate trustee drafted the will in question. Ms. Carlyle’s evidence is that Ms. Barsoski was in the process of “tightening up” the provisions in her will to require that the respondent move into her home within 90 days of her death and to not be absent from it for more than 120 days. However, Ms. Barsoski did not execute the changes before her death. The estate trustee submits that this is nevertheless a relevant circumstance to understanding the respondent’s expectation in this disposition of her home. There is no way that Ms. Barsoski intended that he would not live full-time in her home until four years after her demise. I acknowledge the trustee’s submission that the apparent intention to put some time constraints on when the respondent could take possession of the house may arguably illustrate Ms. Barsoski’s earlier understanding of the respondent’s apparent willingness to move into her home and influenced her in the disposition of this property. However, I conclude this evidence is inadmissible for three reasons. First, the evidence is in the form of instructions ostensibly given to her solicitor: Kaptyn Estate, supra at para. 37. Second, the new will remained unexecuted and therefore does not conclusively speak to her intentions in the disposition of the home. Third, the surrounding circumstances that I should consider are those that existed at the time she made the will. The subsequent, unexecuted will therefore has no probative value in that regard.
[26] I find this provision to be similar to the grant in Moore v. Royal Trust Co., 1956 64 (SCC), [1956] S.C.R. 880, where the legal estate of the house was in the trustee subject to the obligation to permit the respondent to live in the house. The gift is not simply for the respondent’s lifetime, but for such shorter time as the respondent desires or if the respondent is no longer living in the house. The testator expresses the intention that once the respondent is no longer living in the house, the property is to be sold and the proceeds added to the gift to another beneficiary of significant importance in her will, St. Stephens.
[27] The respondent submits that the existence of the fund for the maintenance of the home supports that he holds a life interest in the property, as was the case in McColgan, Re, supra. In McColgan, the court found that the grant of the use of the home to a friend of the testator was a life estate as opposed to a “mere licence”. In reaching this conclusion, the court placed some reliance on the fact that the will directed that all expenses for the upkeep of the property should be paid from a fund to be established by the trustee sufficient to cover those costs. However, in this situation, the fund established by the will is not directed solely to the costs of maintaining the home. The fund is for a fixed amount and broadly provides for the respondent’s living expenses irrespective of where he lives for the remainder of his lifetime, such as in the house, a retirement home or a nursing home. The terms of this fund are therefore more persuasive of the conclusion that the testator’s intention was to provide the respondent with a licence to use the home and not a life interest.
[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.
- Are the conditions on the respondent’s interest in the house clear and unambiguous or is it void for uncertainty?
[29] The determining event on the respondent’s interest in the home is: “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, or if Robert predeceases me…”
[30] The issue is whether the determining event, “Robert 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?
[31] 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, supra at para. 35.
[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: Re McColgan, supra at para. 37; Down Re, 1968 CarswellOnt 124 (ONCA) at paras. 15-16; Sifton v. Sifton 1938 110 (UK JCPC), 1938 CarswellOnt 99 at paras. 3-4, 28, 30.
[33] If the will conveyed a life interest to the respondent, this gift would take effect without limiting conditions. However, I found that the respondent’s interest in the house is a licence. As the condition subsequent fails, it follows the gift fails as void for uncertainty: Powell v. Powell, 1988 3533 (AB KB), 1988 3533 (ABQB) at para. 15.
[34] The result is that the respondent Robert Wesley has a licence to occupy the home. That licence is now ended as the determining event to the permission is void for uncertainty.
[35] There is therefore an order that:
Paragraph IV(e) of the will dated 15 December 2016 as it relates to whether the respondent Robert Wesley is no longer living in the house is void; and
The trustee is required to distribute and/or sell the contents to and to sell the house and to pay the proceeds to St. Stephens of London.
[36] As discussed at the hearing of this application, costs of this application and any issues arising from an accounting of the trust fund for the maintenance of the home are reserved for further submissions if necessary.
Counsel may request an appointment and I will provide further directions.
Justice K. Tranquilli
Released: November 30, 2020
COURT FILE NO.: 19-933
DATE: 20201130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SUSAN ANN CARLYLE, Estate Trustee for the Estate of Diane Barsoski, deceased
Applicant
- and -
ROBERT WESLEY
Respondent
REASONS FOR JUDGMENT
TRANQUILLI J.
Released: November 30, 2020