I practise in the area of estate litigation and am often reminded of the importance of having a clearly drafted Will.
A good recent example comes from the decision in Poole v Dailey, 2020 SKQB 226.
The deceased had left his estate between his two children, Brian and Patricia, on the below terms:
- Patricia was to receive the home at Regina Beach provided she met certain conditions. The clause read as follows:
Further, provided that my said daughter takes physical possession of the said residential property within three months from the date of my death and occupies that property as her residence, then I direct that the said residential property and all contents shall be transferred to my said daughter, to be hers absolutely, subject only to any mortgage which may be registered against the property at the date of my death.
- the residue was then to be shared equally between Brian and Patricia.
The issue before the Court in Poole was thus: Had Patricia taken physical possession of the Regina Beach home, within 3 months of Earl’s death on August 1, 2015?
Regrettably, the Will did not define in black and white terms, what would trigger a finding of “occupancy” or “residency”.
A trial was held. The parties each called evidence to support their own position. Brian argued that Patricia had not resided in the home within 3 months. He relied on:
- the fact that he often drove by the home during the relevant period, and did not often note evidence of Patricia residing at the home;
- The water metre readings that Brian had recorded from the home. Brian suggested that an average person uses 100 gallons of water a day.
However, the Court did not find that Brian had qualified himself as an expert witness, for the purpose of introducing expert testimony.
Patricia in turn argued that she had in fact resided in the home within 3 months. She relied on the below:
- over the course of August and September 2015, she had moved her things out of the home in Regina, and into the home at Regina Beach;
- Patricia had reconnected with a girlfriend from high school, at Regina Beach and entertained her cousins in her home at Regina Beach. Patricia’s friend testified to this;
- There was nothing in the evidence that suggested that Patricia was not being truthful about her occupation of the Regina Beach home.
Ultimately, the Court, therefore, found that Patricia had in fact occupied the Regina Beach home, as prescribed by the will. As such, Patricia Dailey was entitled to absolute title of the property.
Poole offers a practical lesson on the importance of having a carefully defined Will. Here, the costly proceeding could perhaps have been avoided had the Will defined what exact criteria would constitute “occupancy” or “residency”.
The Court’s ruling on costs:
Interestingly, the Court in Poole did not award Patricia her legal costs out of the Estate. The Court held that the proceeding was intended to advance Patricia’s personal interests in the estate. As such, Patricia’s legal fees should not be borne by the estate.
This finding may attract comments. Traditionally, in estate matters, legal fees for successful parties have often been awarded out of the estate. Moreover, they are often paid on the “solicitor-client” scale (meaning dollar-for-dollar costs). The reasoning has traditionally been that the estate should bear the cost of any proceeding aimed at determining the true intention of the deceased, or, of any proceeding caused by an ambiguity for which the deceased was responsible. Such traditional reasoning would have appeared to apply equally in Poole.
It is too early to tell if the costs aspect of Poole may be an outlier decision, or, if it signals a broader departure in Saskatchewan from the prior approach to legal costs in estate matters.