Family comes in all shapes and sizes. While most consider “family” restricted to biological or marital ties, friendships can become as close as a family bond. When drafting their Will, some people may choose to include their chosen family. This spring, the Ontario Court of Appeal corrected a lower court’s failure to acknowledge how close chosen family ties can be.

Deceased Left Her Home to Her Long-time Friend in Her Will

The case in question, Barsoski Estate v. Wesley, focused on the proper interpretation of the appellant’s late friend’s Will. The appellant, Robert, was a close long-term friend of the deceased, Diane. Robert received many benefits in Diane’s Will, including a $250,000 gift of personal property (a “bequest”) and a $500,000 fund for the home’s maintenance. She also instructed her estate trustee to hold her home and its contents for Robert during his lifetime “or for such shorter period as [he] desires.”

Under the terms of the Will, if Robert were no longer living in the house, the fund would cover his living expenses, nursing or retirement home care, or funeral expenses. The home’s contents would also be sold, with proceeds going to St. Stephen’s, a charity that was also a beneficiary under the Will.

After Diane’s passing, an investigation funded by St. Stephen’s showed that Robert’s acquaintance was living in the home while he worked full-time in Toronto and then later in Sault Ste. Marie. Despite this, Robert maintained that Diane’s home was his primary residence and that he spent weekends there once or twice a month. The estate trustee brought an application to understand the Will’s conditions further.

Principles of Will Interpretation

Every Will challenge will be subjected to interpretation by a judge. Judges must follow certain fundamental principles when undergoing this analysis:

  1. A Will must be interpreted to give effect to the intention of the testator. This is the most important principle.
  2. The 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”).
  3. The court must assume that the testator intended the words in the Will to have their ordinary meaning.
  4. The court may canvas extrinsic evidence to ascertain the testator’s intention.

While past decisions by other judges may be useful, courts cannot rely on case law alone. The most important part of Will interpretation is the testator’s intention and the factors determining those intentions.

Trial Judge Ordered the Home to Be Sold

At trial, the judge decided that Robert was given a licence, not a life interest, in the house. According to the trial judge, her conclusion that the gift was a licence rather than a life interest was supported by the $500,000 fund. The fund was dedicated not only to the home’s maintenance but also to Robert’s expenses outside the home should Robert choose to stop living in the house.

The licence, the trial judge held, would expire when he was “no longer living in the house.” However, because the use of that phrase was unclear, the application judge decided that the gift to Robert had failed. Accordingly, the estate’s trustee was ordered to sell the house and pay the sale proceeds to St. Stephen’s.

Court of Appeal Found Trial Judge Erred in Interpretation of Will

The Ontario Court of Appeal disagreed with the trial judge’s decision. The Court noted that the judge had ignored the fact that the legal title to the home still belonged to the trustees. Since the trustees still possessed legal title, Diane was not trying to create a life estate.

The Court also took issue with the trial judge’s understanding of the $500,000 fund. The Will considered the likelihood that Robert would not be able to earn enough income to maintain the home post-retirement and would need financial assistance. So, the fund’s purpose was actually for the upkeep of the home as long as Robert lived in it.

The Traditional Family is Not the Only Family Form

The Court was also critical of the trial judge’s failure to distinguish this case as one involving a similar interest granted to a spouse or common-law partner, rather than a friend. Her analysis was limited to a traditional view and disregarded the fact that Robert and Diane considered each other family. The Court of Appeal acknowledged, citing the Supreme Court of Canada:

“[t]he traditional family is not the only family form, and non-traditional family forms may equally advance true family values… [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 legal family for social or legal purposes.”

With Robert clearly being part of Diane’s chosen family, there was no reason not to give effect to her wishes. This decision aligns with other findings that have similarly treated a friendship as family for the purposes of a Will (including life interests to friends).

It is Still Crucial to Ensure Certainty in Drafting Wills

Despite the Court of Appeal’s disagreement with some of the trial judge’s findings, it found she was correct in determining that the condition expressed in the Will was “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.” The term “no longer living” was indeed uncertain. The Court held that it was not possible to define what was meant by “live” in the house when Diane ought to have known that Robert could not move into her home immediately after her death.

The appeal was ultimately allowed in part and concluded that Robert had indeed been granted a life interest in the house. However, the disputed condition was void for uncertainty, and the gift was allowed to survive without the limiting terms.

Derfel Estate Law Provides Trusted Will Interpretation & Estate Administration Advice

Derfel Estate Law is a boutique estate litigation law firm located in Toronto and serving clients throughout Ontario. Our professional estate litigation lawyers focus on all aspects of estate disputes, as well as estate administration and probate matters. We act for any party involved in estate litigation, including beneficiaries, guardians, executors, and estate trustees. To schedule a consultation, please contact us at 416-847-3580 or reach out online.