Legal Blog

Will Ambiguity

Barsoski v. Wesley 2020 Ont SCJ

A will required the trustees to hold the testator’s house and contents as a “home” for a beneficiary during his lifetime. The will established a $500,000 fund to ensure that the home was professionally maintained. The will provided that if the beneficiary was no longer living in the home, the home was to be sold, but the fund was to be used for the beneficiary’s living expenses. The judge had to decide whether the terms of the will granted a life estate or merely a license to live in the home. This decision was important because the beneficiary was seemingly not living in the home; rather, an acquaintance of his was. The judge held that the will created a license to occupy the home. She then found that the determining event (i.e., no longer living in the home) was void for uncertainty (i.e., What does it mean? Primary residence, stay in the house one or two weekends, intend to live there?) and that the entire gift, being only a license, failed due to the uncertain terms.

Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.