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When drafting a will, one of the goals is to make the will as clear and concise as possible, leaving little room for interpretation outside of the testator’s wishes. But as we’ve seen with many of the situations we’ve discussed, despite a testator’s best intentions, the language of a will can always be subject to debate. A recent decision from the Ontario Superior Court of Justice looks a case where the court had to address such a situation.

The will and the property

The will in question was written by the husband in a relationship and was dated March 17, 1999. He passed away in 2002 and was survived by his wife. Prior to November 1999, the husband and wife lived together in a property they owned as tenants in common. However, in November 1999 the husband moved into a long-term care facility where he lived until he passed away on December 30, 2002.

Even after the husband’s move out of the matrimonial home the couple remained husband and wife. In February 2000, the wife sold the home and put a deposit on a “life lease” with her and the husband named as tenants in common. Of course, the husband didn’t ever actually live in the new home.

The wife sold the life lease in 2007, at which time she deposited 50% of the proceeds into the husband’s estate.

The court was asked to interpret a few sections of the husband’s will, notably the following:

3(h)  To allow my wife, during her lifetime, the use and enjoyment of whatever interest I may own in any residence we may occupy at the time of my death.  My Trustee may, at any time, with the consent of my wife, sell such interest with the proceeds of such sale assist in the purchase of another residence for the use and enjoyment of my wife as aforesaid and so on from time to time, always retaining the proportionate share in such residence for my estate.  If my wife so prefers, my Trustee may sell such interest in the residence and hold the net proceeds of sale in trust for my wife as hereinafter set out.  If, during any period, the whole or any part of the proceeds of any such sale be not so used, they shall be invested by my Trustee and my wife shall, during such period, be entitled to the net income therefrom.  My Trustee in determining the proceeds of sale of any such interest in the residence with a view to providing another interest in the residence for my wife as aforesaid, shall not deduct the amount of any debts secured thereon.

All taxes, insurance, mortgage interest, repairs and any charges or amounts necessary for the general upkeep of such residence shall be paid by my wife so long as she shall continue to have the use and enjoyment of such residence.

On the death of my wife, any interest in such residence then held for the use and enjoyment of my wife as herein provided and/or any fund then held by my Trustee representing the sale of any interest in such residence shall be added to the residue of my estate to be dealt with as part thereof.

The question was whether the property with the life lease applied to paragraph 3(h), specifically in respect to the husband’s interest in “any residence we may occupy at the time of my death.” The husband owned the life lease with the wife, but he didn’t ever live there.

Following that, the if the answer was “yes” the court would have to determine if the wife was entitled to the net income earned on the proceeds of the sale of the home which were not used for the purchase of the second.

If the answer was “no” the court would have to ask whether any of the net income which would have been earned by the estate on the sale of the home should have been turned over to the estate (as per another section of the will).

The armchair rule

In determining whether the clause would apply to the life lease, the court adopted the “armchair rule” in which the court “sits in the place of the testator and assumes the same knowledge he had to the nature and extent of his assets, the makeup of his family, and his relationship to its members.”

The court accepted that the will was drafted while the couple were married, with the only reason they weren’t living together being his medical condition. The court also accepted that the husband’s primary concern with the will was that his wife was looked after financially in the event of his death. The court wrote, “He clearly wanted his wife to be able to remain living in whatever home she and he, but for his medical condition, would have been living in at the time of his death.”

The court then determined the wife was entitled to the net income earned on the proceeds of the matrimonial home in order to purchase the life lease.

If you are considering filing an application to challenge a will, contact the estates lawyers at Derfel Estates Law before you proceed. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process. Call us at 1-844-2-DERFEL or contact us online to schedule a consultation.

For professional service and knowledgeable advice on Estate Law matters contact Derfel Estates Law

Contact Derfel Estates Law today to speak with a Toronto estate lawyer who will work tirelessly to achieve the best possible resolution to your will, estate, power of attorney, or trusts dispute.

Call us at 1-844-2-DERFEL or contact us using the form.

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