In Poole v Dailey, 2020 SKQB 226, the Queen's Bench for Saskatchewan considered the case of a will that left a residential property to a couple's daughter, on condition that she occupy it as her residence.
Earl and Margaret Poole had two children, Patricia and Brian. Margaret died on January 16, 2015 and left her estate to Earl, who died on August 1, 2015.
Earl's will left a residential property in Regina Beach (the most valuable asset of the estate) to Patricia, subject to a condition listed in s. 5(c)(i) of the will:
... Further, provided that my said daughter takes physical possession of the said residential property within three months from the date of my death and occupies that property as her residence, then I direct that the said residential property and all contents shall be transferred to my said daughter ...
Margaret and Earl had told Patricia about this provision, but Brian only learned of it after their deaths. The disappointment and surprised strained Brian and Patricia's relationship.
Brian began regularly driving by the Regina Beach property and checking the water meter. He became convinced that Patricia did not spend enough time at the house to meet the requirement that she occupy it as her residence.
At trial, Brian submitted a calendar he kept logging when Patricia was and wasn't at the house when he drove by, along with water meter readings. Brian asserted that the low level of water usage showed that Patricia had not begun residing in the house before the three-month deadline.
Patricia submitted that her low water usage was deliberate, since the house had a septic tank and she was unfamiliar with these and didn't want to cause an overflow.
Patricia also called several witnesses.
- Her friend Linda testified that she helped Patricia move boxes into the Regina Beach house in September 2015 and that Patricia was living in the home by mid-October
- Patricia's neighbour Craig testified that she told him she'd be moving to Regina Beach and that things were winding down at her old house by late September
- Patricia and Brian's cousins testified that Patricia gave them a tour of the house in late September and that the house had signs of being lived in
Did Patricia satisfy the requirement set out in s. 5(c)(i) of Earl's will?
Richmond J. turned to Black's Law Dictionary, 11th ed, for key definitions. "Occupy" is defined as "to live or stay in" and "Residence" is defined as:
- The act or fact of living in a given place for some time ... also termed residency.
- The place where one actually lives, as distinguished from a domicile ... Residence usu. just means bodily presence as an inhabitant in a given place; domicile usu. requires bodily presence plus an intention to make the place one’s home. A person thus may have more than one residence at a time but only one domicile. Sometimes, though, the two terms are used synonymously ...
By these definitions, it was clear that Patricia had bodily residence at the Regina Beach home. There was ample evidence - based on bills, witnesses, and Patricia's testimony - that she had occupied the property as her residency within the three month time frame.
Patricia was therefore entitled to absolute title of the property.