Wish I may, wish I might…
Article Written By: Kayla A. Carr | Associate Lawyer 

In Landry v Christiansen-Hassett et al, 2024 ONSC 2509, the Court considered whether the expression of a “wish” in a Will was simply a wish that created an unenforceable moral obligation or whether it created a trust on one beneficiary for the benefit of the other residual beneficiaries.

The drafting solicitor prepared a memorandum following the Will instruction meeting. In the memorandum, the drafting solicitor noted, among other things:

• The testator’s main asset was his home;
• The testator wanted his common-law spouse to receive the home when he died;
• The testator also indicated that when/if the common-law spouse sold the home during her lifetime, that 20% of the proceeds would be equally divided amongst his residual beneficiaries (being his parents, his daughter, and his sister);
• The testator did not want a life interest created; and,
• The testator’s primary concern was that his common-law spouse had a place to live, and he was adamant that the family understood his position, and that the clause would be honoured should the home be sold.

The contentious provision in the Will read:

I DIRECT my Trustees to transfer any interest I may own at the time of my death in my home and its contents known municipally as […] (hereinafter referred to as the “Home”), to my common-law spouse, […], for her sole and only use absolutely. It is my wishes that when [my common-law spouse] sells/otherwise dispose of the Home, twenty (20%) percent of the proceeds shall form part of the residue of my estate and distributed to the beneficiaries in accordance with clause c) herein.

Other than the home, the deceased’s other assets were his pension and a life insurance policy, which were directly paid to his daughter.

The deceased’s sister was appointed as the estate trustee. She brought an application for directions with respect to the administration of the estate and a direction that the home be sold, as the estate expenses and debts could not be paid unless the home was sold.

The estate trustee asked the court to apply the “armchair rule” to determine the testator’s actual intentions regarding the disposition of the home. The estate trustee argued that it was the deceased’s intention to create a legally binding trust in favour of the residual beneficiaries by including the “wish” when the common-law spouse sells the property.

The common-law spouse argued that the “wish” is unenforceable and does not create a condition or a trust. She argued that the court should apply the fundamental principles that govern the interpretation of wills as set out in Barsoski Estate v Wesley, 2022 ONCA 399, which are:

1. A will must be interpreted to give effect to the intention of the testator. No other principle is more important than this one;
2. a 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. a court must assume that the testator intended the words in the will to have their ordinary meaning; and
4. a court may canvas extrinsic evidence to ascertain the testator’s intention.

After considering the “armchair rule” and the fundamental principles that govern the interpretation of wills, the court determined that the contentious provision in the Will concerning what was to happen with the proceeds of sale was a wish and not a direction. The language in the contentious provision was not imperative. It therefore did not create a legally binding trust, but rather a moral obligation that does not arise until the property is sold.

The court found that the estate had no assets to continue to pay the property taxes and insurance for the home, and that it could not administer the estate until the debts are cleared. The court determined that the testator’s wishes, as recorded in his Will, had made it impossible for the estate trustee to administer the estate properly. If the parties could not come to a resolution concerning the administration of the estate amongst themselves, they could attend a case conference with a judge.

The Court ordered the costs of both parties to be paid from the Estate, as the testator’s “wish” in the will resulted in the issue requiring direction.

Article Written By: Kayla A. Carr | Associate Lawyer 
Scarfone Hawkins LLP | Hamilton, Ontario