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Condition Subsequent

. Barsoski Estate v. Wesley

In Barsoski Estate v. Wesley (Ont CA, 2022) the Court of Appeal considered the invalidity of a will for uncertainty of it's 'condition subsequent':
(4) Was the condition void for uncertainty?

[51] The appellant argues that the application judge confused or conflated the principles applicable to licences, determinable estates and life estates subject to conditions subsequent. However, he does not submit that, assuming, as I have found, the will created a life interest, the application judge erred in finding that the terminating event was a condition subsequent which was void for uncertainty.

[52] The respondent, while acknowledging that the application judge may have used imprecise language or conflated the principles that apply to the extinguishment of a licence as opposed to a life interest, submits that this did not affect the result. She further acknowledges that the distinction between a condition subsequent and a determining event is “murky at best”, but submits that “[i]f a terminating event is an integral part of the gift, the interest created is likely to be considered ‘determinable’”, giving examples of the presence of wording such as “during”, “while”, “so long as”, as well as the close proximity of the gift and the restriction in the same phrase or sentence. Conversely, a condition subsequent is one where the gift is “external to the limitation” : Re Essex County Roman Catholic School Board and Antaya (1977), 1977 CanLII 1822 (ON SC), 80 D.L.R. (3d) 405 (Ont. H.C.), at p. 410.

[53] The respondent argues that the following words, which appear in a separate sentence after the granting words, tend to indicate a condition subsequent:
Upon the earlier of [the appellant] advising my Trustees that he no longer wishes to live in the House, [the appellant] no longer living in the House, and [the appellant’s] death, or if [the appellant] predeceases me … the House shall be sold.
[54] The respondent also states that there are limitations built into the initial part of the gift that “could” indicate a determinable interest. For example, the will reads “as a home for [the appellant] … during his lifetime or for such shorter period as [the appellant] desires”. She submits that the requirement that the appellant live in the home could be construed as an integral and necessary part of the formula from which the size of his interest is to be ascertained.

[55] The application judge, in my view, did not err in concluding that the words in issue created a condition subsequent. She noted that there was no dispute before her that these terms were “external to the gift”, and this interpretation is supported by contextual considerations, including the fact that the appellant had never actually resided in the house before the testator’s death, although he was a frequent visitor. The admissible evidence supports the inference that the testator, given her knowledge that the appellant would have to continue to work until retirement and that he would not necessarily be living in the home immediately upon her death given that his employment was unlikely to be in London, contemplated that these terms were subsequent to the vesting of the gift. Accordingly, the condition must be construed as a condition subsequent because she could not have intended that her gift would come to its natural end as soon as it vested.

[56] Nor do I see any error in the application judge’s conclusion that the condition is void for uncertainty. At para. 31 of her reasons, she stated that
A condition subsequent is void for uncertainty if the condition is “far too indefinite and uncertain to enable the Court to say what is was that the testator meant should be the event on which the estate was to determine”: McColgan Re, supra at para. 35
[57] She continued at para. 32:
I am satisfied that the terms “no longer living” creates uncertainty such that the condition subsequent is invalid. It is impossible to define, on the terms of this will, what it means to “live” in the house. The terms do not explain what the respondent needs to demonstrate that he is “living” in the house or when he must establish that act. As noted by the respondent, this limiting phrase raises questions as to how long he can be absent or by what date or for how long he must occupy the home to be considered be “living” in the house. The problems with terms such as these are exemplified by the decisions relied upon by both parties, which concluded that such conditions requiring a beneficiary to live, reside, remain or stay on a property are void for uncertainty. [Citations omitted.].
[58] There is no dispute that if a subsequent condition contained in a grant of a life interest is found to be void for uncertainty, the gift is effective without the limiting conditions: Powell v. Powell, at para. 14. As I noted above, a condition subsequent is not integral to the interest and, therefore, the gift can exist without the condition. Accordingly, the uncertain condition is struck, and the gift survives free and clear of any condition.


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