All About Estates

When Spouses “Separate” Due to Changing Medical Needs

This blog was written by Christina Papadopoulos, student-at-law at de VRIES LITIGATION LLP.

How does a physical separation caused by the admission of one spouse into a long-term care facility impact the interpretation of a will? This was the question posed to the Ontario Superior Court of Justice in Stuart v. Stuart, 2019 ONSC 4328.

In that case, a married couple lived together in a property they owned as tenants in common. Unfortunately, the husband’s health declined and he moved into a long-term care facility. Shortly thereafter, the wife sold their matrimonial home and purchased a new house with the proceeds. The new house was registered in the names of the husband and wife as tenants in common (the ownership was referred to as a “life lease” in the decision). The husband never lived in the new residence as his medical condition didn’t allowed him to leave long-term care. Eventually, the husband passed away and the wife sold the life lease. She deposited 50% of the sale proceeds into her late husband’s estate.

The husband’s son from a prior relationship, in his capacity as succeeding estate trustee for his father’s estate, commenced an application for directions regarding the interpretation of the father’s will. The disputed clause reads:

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, 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… 

[emphasis added]

The Court was asked whether this clause extended to the residence that was owned by the husband and the wife as tenants in common, but never occupied by the husband. If the clause did apply, then the wife, during her lifetime, was entitled to the net income earned on the proceeds of the sale of the residence which were not used towards the purchase of a new home.

As a first step, the court applied the “armchair rule” – this rule of interpretation allows the court to “assume the same knowledge the testator had to the nature and extent of his assets, the makeup of his family, and his relation to its member” in order to determine the intended meaning of the clause.

Based on the available evidence, Justice Sloan concluded that the only reason the parties were not living together at the time of the husband’s death was because of his medical condition. Despite their physical separation, there was no intent to end the marriage. Furthermore, a reading of the will as a whole suggested that the husband’s primary concern was that his wife would be adequately looked after in the event of his demise.

This led to the Court’s conclusion that, despite the use of the words “we” and “occupy” in defining the residence, the husband’s intention was for the wife to be able to remain living in whichever home they would have occupied together at the time of his death, but for his medical condition which prevented him from doing so.

Given the above, the Court held that the clause did extend to the life lease. This meant that the wife was entitled to receive the net income earned on the 50% of the sale proceeds which were deposited into the estate rather than being used towards the purchase of a new home.

This is an good example of physical separation due to medical reasons is not the same as a legal separation, or intent to dissolve a marriage. Where medical needs prevent spouses from living together, the courts will be reluctant to deprive either spouse of their rights and entitlements.

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