/ Case Law

Case Brief - Void for uncertainty?

In Barsoki v. Wesley, 2020 ONSC 7407, the SCJ looked at a will with some less-than-clear provisions that gave the deceased's friend an unclear proprietary interest in her home.

The Facts

Diane Barsoki ("Diane") died on June 28, 2017. Her will left much of her estate to her lifelong friend Robert Wesley ("Robert). Under the will, Robert received:

  • A $250,000 bequest
  • Her house and its contents "as a home for Robert"
  • A fund of $500,000 to maintain the home if Robert is living in it, and to be used for other living expenses if Robert is no longer living in the home

This proprietary interest came with the condition that if Robert was "no longer living in the House", then it would be sold and the proceeds would go to St. Stephens House in London, Ontario.

Robert listed the home as his primary residence, but only stayed there on weekends once or twice a month while he worked in other cities. St. Stephens asserted that this did not satisfy the will's condition and the home should be sold, with the proceeds going to their charity.

Diane's estate trustee brought an application to get direction from the court on how to interpret this provision of the will.

The Issue

The case raises two issues:

  1. Did Diane's will give Robert a license to live in the home or a life estate?
  2. Are the conditions attached to this interest clear or void for uncertainty?


The nature of the proprietary interest in the home

A license gives someone permission to do something that would otherwise be trespass. This would give Robert the right to use Diane's home for various purposes, but would not give him any kind of title or estate (see Allen v. Allen, 2001 CarswellOnt 4030 (S.C.J.) at para. 20).

A life estate gives someone immediate possession to use the home as an owner, subject to certain restrictions (see Hurst v. Soucoup, 2010 NBQB 216 at para. 22).

Diane's will stated that her house would be given “as a home for Robert Wesley (“Robert”) during his lifetime or for such shorter period as Robert desires.” The case law on distinguishing licenses from life interests is fact-specific and not governed by any overarching principle. A court must look at the subjective meaning of the testator's words.

In this case, the fact that the will contemplated Robert could live in the house "for a shorter period" and made arrangements for the proceeds of the sale of the house after he left, suggests a license. While a fund for the maintenance of the home would point towards a life interest (see Moore v. Royal Trust Co., 1956 CanLII 64 (SCC), [1956] S.C.R. 880), in this case the maintenance fund was more general, i.e. it covered Robert's living expenses in a variety of scenarios.

Tranquilli J. found that the proprietary interest was a license.

The context in this case suggests that Diane's home was important to her

The nature of the proprietary interest in the home

Robert's right to the house came with the condition subsequent that he stay in it:

“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…”

Tranquilli J. found that "no longer living" was indefinite and uncertain. It was not clear how long Robert could leave the home or what constituted living in it. The provision was therefore void for uncertainty.

Unfortunately for Robert, if the condition subsequent of a license fails, then the whole gift is also void for uncertainty. Had Robert's interest been a life interest, he would simply have the house without the condition.


Accordingly, Tranquilli J. found that the will gave Robert a license to occupy the home and that this license has ended because the condition attached to it is void for uncertainty. The house must be sold with the proceeds going to St. Stephens.

The Bottom Line

To avoid disputes, wills need to be absolutely clear.

Patrick Hartford

Patrick Hartford

Patrick is the Founder of NoticeConnect.

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