Resolution of estate matters, including appropriate interpretation of wills and the associated determination of the true intentions and wishes of the deceased, is often contentious. This is particularly so where the matter involves disputes between family members who may have had differing understandings of the deceased’s intentions. In such cases, court intervention is often appropriate and necessary, as the parties cannot resolve satisfactorily on their own accord.
Estate matters may become particularly fraught where one of the beneficiaries lacks the mental capacity to argue in their best interests, as was the case in Swift v Nazaroff. In that case, the court sought to determine whether a property had been bequeathed to one party “free and clear” or subject to a life estate or licence to occupy.
Sibling Disputes Arise in the Wake of Mother’s Death
The Swift case arose as a dispute between siblings over the ownership and disposition of a parcel of real estate in BC, which a deceased mother had bequeathed to only one of her six children. As noted by the court, “the dispute has effectively caused lines to be drawn in the proverbial sand and resulting in possibly irreparable damage to certain sibling relationships.”
The decedent’s mother, Doris Nazaroff (“Doris”), died in January 2017, leaving behind a will which designated how her estate was to be divided. Doris was survived by six children: Nataline, Holly, Michael, Wallace, Andy and Sonia. The will appointed Nataline and Holly as co-executrixes of the will. While Doris did not own many material possessions at the time of her death, her most valuable asset was a real property in Slocan, BC, which had upon it a home where Doris had lived before her death.
Doris’ will dictated that the Slocan property was bequeathed to her Nataline, subject to the right of her son Wallace “to occupy the premises in such circumstances and for such time as may be required when he has no other permanent residence.” It provided that Wallace paid for any associated expenses (ie, taxes, utilities, general upkeep) for the time he resided on the property. Her will also bequeathed a neighbouring property, “Lot 1”, to Holly, free of restrictions. The transfer of this property had been registered before Doris’ death, though the same could not be said of the Slocan property.
Nataline believed that she was entitled to “free and clear” ownership of the Slocan property and that she should not have to allow Walter to live on the property at all, or, if at all, in very limited circumstances. It was for the court to determine whether Doris would have created a life estate in the Slocan property or a licence to live there under certain circumstances.
One Beneficiary of the Estate Endures Physical and Mental Health Challenges
Wallace, who was 62 years old at the time of this proceeding, was described by the court as having “complex health issues – both from a physical health perspective and a mental health perspective.” He was noted to have endured a somewhat troubled life, sporadically working low-income jobs in various places and dealing with persistent health issues throughout his life, including substance use disorder. Due to Wallace’s limitations, a litigation guardian represented him throughout all legal proceedings.
Wallace lived in a trailer park in Whitehouse, in the Yukon Territory, when Doris passed away. When he returned to BC following Doris’ death, the court found that his mental health deteriorated, both as a result of having lost his mother and also because of family tensions which had arisen as a result of Doris’ will. After Wallace’s return to Whitehorse after Doris’ funeral, Wallace attempted to hitchhike his way back to British Columbia, some 1,600 kilometres away. On that occasion, he was located by the police and taken to a local hospital. The police were familiar with Wallace, as Doris had occasionally requested that they conduct wellness checks of him when she could not reach him for periods.
Testator Was Aware of Beneficiary’s Challenges and Sought to Assist Him Throughout Her Life
When assessing a will, the court will consider the actual document’s written words and the testator’s intentions. This includes considering how the testator behaved toward the beneficiaries throughout his or her life, as well as any stated intentions to provide anything to any particular party.
The evidence in this case demonstrated that Doris had consistently worried about Wallace throughout his life and that he had periodically returned to live with her at various times, even through adulthood. It was entirely consistent with her behaviour throughout her lifetime that she would want to ensure that he was adequately provided for after her death. The court found that Nataline persisted, in her testimony before the court, in downplaying Wallace’s health issues, both mental and physical, to substantiate her position that she was entitled to free and clear possession of Doris’ property sans any obligation to Wallace.
Who Occupied the Property Before the Testator’s Death?
Before Doris’s death, Holly and her husband Terry had moved into the property and lived there with Doris. After Doris’ death, Holly and Terry remained on the property, and following Wallace’s failed attempt to hitchhike “home,” they assisted Wallace in sorting out his affairs (such as his establishing the pension Wallace was due from his job as a janitor in Whitehorse) and returning to live on the property. Holly and Terry had lived with Walter at the Slocan property since Wallace returned from Whitehorse. Although Nataline had repeatedly requested that Holly and Terry vacate the property, they had refused to leave the premises, and the court was satisfied that the two of them “provide considerable support to Wallace with respect to both his mental health and physical issues” while the three of them lived together.
Life Estate or Licence to Occupy?
In effect, the court was tasked with assessing whether Doris would have granted Wallace the right to occupy the Slocan property for some time or a life estate in that property. In making this assessment, the court noted that it must first determine the testator’s (i.e., Doris’) intentions. In so doing, the court must consider the specific language used in the will and the circumstances in which it was drafted.
In this case, the court was satisfied that the specific language of the will wherein it was stated, “subject, however, to the right of my son, WALLACE NAZAROFF, to occupy the premises in such circumstances and for such time as may be required when he has no other permanent residence,” was intended by Doris to give Wallace the right, for his lifetime, to live on the Slocan property as and when he needed to do so. In effect, the court was convinced that Doris recognized that Wallace was likely to always endure challenges throughout his life, no matter his age, and as such, she wanted to guarantee that he would always have a place to live. The court also noted that the phrase “for such time” appeared to consider that sometimes Wallace required hospitalization for varying periods. The court attributed that phrase to the fact that “Doris would not have wanted Wallace to forego seeking medical assistance as required, including hospitalization, at risk of losing his right to occupy the Property.” The court found further support for this conclusion in that Doris had not transferred ownership of the Slocan property to Nataline in her lifetime, as she had transferred Lot 1 to Holly. If she had, then Wallace’s right to live on the Slocan property would, legally, have been at Nataline’s whim. The fact that Doris expressly did not do so indicated to the court that Doris intended to ensure that Wallace always had a place to live.
The Court Finds Wallace is Entitled to a Life Estate
As a result, the court was satisfied that Wallace was entitled to a life estate in the Slocan property, as a result of which he was entitled to occupy those premises on the terms dictated by the will, which included his obligation to pay utilities, expenses and maintenance costs associated with the upkeep of the property. The court further ordered that Wallace was not precluded from having Holly and Terry living with him on the Slocan property, though it also ordered that Wallace was entitled, of his own volition, to terminate their right to live there and to select alternate caregivers to reside with him on the property so long as the Slocan property remained his primary residence. Further, the Slocan property was legally designated by the court as Wallace’s primary residence unless and until the Public Guardian and Trustee, on Wallace’s behalf, consented to change that designation. As title to the property would be transferred to Nataline’s name, she was declared by the court to be entitled to obtain insurance on the Slocan property, which would list her as the first lost payee, though if she did so, Nataline would be solely responsible for paying the premiums on any such policy.
Contact the Estate Lawyers at Meridian Law Group in Vancouver for Advice on Your Commercial Dispute
The estate lawyers at Meridian Law Group are experienced in all facets of estate litigation, including dealing with problem executors, powers of attorney, trust disagreements, and disputes over the interpretation of a will. Meridian Law Group’s estate lawyers have the knowledge and skill to handle your estate matter compassionately and competently, ensuring that your rights are asserted and vindicated throughout all proceedings. Contact us online or by telephone at (604) 687-2277 to schedule a confidential and comprehensive meeting with one of our capable team members.