The March 2025 decision of Justice Joseph di Luca in Tyndall v. Noyes is a brief yet important reminder of several key issues frequently encountered by Will and Estate Lawyers and Estate Litigation Lawyers, particularly when it comes to interpreting Wills and dealing with the rights of surviving spouses. A common scenario is that of a common law spouse being left behind—and their right to continue living in the “matrimonial home” owned solely by the now-deceased partner.
Gerry Tyndall, now 76 years of age and after 26 years of living with his common law spouse, the recently deceased Ms. Gail Hill, found himself at odds with her children from a prior relationship.
If I had a dime for every time this happens.
Under his common law spouse’s Will, he was granted the right:“Gerry…can remain living in my house until his death. At that time, the house will be sold and the proceeds divided between my four children. My estate will pay the taxes.”
The Will should have been drafted more carefully. The dispute revolved around whether this provision created a life estate, or merely a licence to occupy the home. This is a classic issue often addressed by Wills and Probate Lawyers and Estate Litigation Attorneys, especially when handling family disputes post-death.
The court, applying standard principles of Will interpretation—which Wills Lawyers in Brampton regularly navigate—found that what had been granted to Mr. Tyndall was the equivalent of a life estate. In essence, a life estate includes exclusive possession of the property, meaning no one else is permitted to live there without the life tenant’s consent. Mr. Tyndall was responsible for ongoing regular expenses such as utilities, while taxes and capital improvements were to be covered by the estate.
The lesser right—a licence—was discussed in the Barsoski Estate v. Wesley 2022 Ontario Court of Appeal case, which made clear that distinguishing a licence from a life estate is often very fact-specific. These types of nuanced property rights are familiar territory for Estate Lawyers and Powers of Attorney Lawyers, particularly when dealing with blended families or informal living arrangements.
What are the lessons from this case? First, that a Will should be drafted with as much precision as possible. If a life estate is to be granted, clear instructions should outline which party is responsible for specific expenses.
Wills and Estates Lawyers must also consider the capital gains implications of granting a life estate—but that’s a topic for another blog post.
For advice on drafting Wills, navigating Powers of Attorney, or handling Estate Litigation, consult experienced Wills and Estates Lawyers or Attorney Lawyers—particularly if you’re looking for Lawyers in Brampton for Wills or Wills Lawyers Brampton.
