September 4, 2019

Separation for medical reason affects married spouses whom are forced to live apart due to one’s changing medical needs or deteriorating health. In Stuart v. Stuart, 2019 ONSC 4328, the Ontario Superior Court of Justice was asked to assess how a physical separation due to a spouse’s admission to a long-term care facility impacts the interpretation of their will.

Andrew and his wife, Doreen lived together in a property they owned as tenants in common until Andrew moved into a long-term care facility. In February 2000, Doreen sold their matrimonial home and put a deposit on a life lease. While the lease was taken as tenants in common, Andrew never resided in the dwelling governed by the life lease. His medical condition didn’t allowed him to leave his long-term care facility, where he ultimately passed away in December 2002.

The court was asked to assist in the interpretation of several clauses of Andrew’s last will dated March 17,1999. In doing so, the court acknowledged that its decision impacts the contested passing of account action related to this estate.

The court was asked to interpret paragraph 3(h) of Andrew’s will:

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. […]

The court had to consider whether this clause would extend to the residence that was owned by Andrew and Doreen as tenants in common, but never occupied by Andrew as of the date of his death.

The court applied the “armchair rule”. This rule of interpretation allows the court to take into account the circumstances in which the will was drafted such as 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”.

Based on the evidence presented to the court, Justice Sloan concluded that the only reason the parties were not living together at the time of Andrew’s death was because of his medical condition. Furthermore, a reading of the will as a whole suggested that Andrew’s primary concern was that Doreen would be adequately looked after financially, in the event of his demise.

Despite Andrew’s use of the words “we” and “occupy” as opposed to ownership in his will, the court held that his intention in drafting his will was for Doreen to be able to remain living in whatever home she and he, but for his medical condition, would have been living in at the time of his death.

Given the above, the court found that Doreen was allowed to occupy the residence governed by the life lease despite Andrew never living there. As such, the court demonstrated how the intention of the testator can circumvent the otherwise adverse effect of the separation for medical reason.