McCubbin v. McCubbin, 2026 ONSC 2079
A recent decision of the Ontario Superior Court of Justice provides an important reminder of the risks associated with informal or poorly drafted wills, particularly when a Testator attempts to provide a spouse with a home while also making provision for children.
In McCubbin v. McCubbin, Justice Sunil S. Mathai was asked to determine what a deceased husband intended when he wrote that his wife was to “assume ownership” of the family home, followed by a provision dealing with what would happen to the home’s equity upon her death.
The Court ultimately held that the wife received full legal ownership of the residence, rather than merely a life interest.
The Will
Colin McCubbin and Louise McCubbin were married in 2009 and lived in the family home in Peterborough.
In January 2015, shortly before undergoing quadruple bypass surgery, Colin prepared a handwritten will. The relevant provisions stated:
- “LOUISE MCCUBBIN (SPOUSE) SHALL ASSUME OWNERSHIP OF THE FAMILY HOME AND CONTENTS…”
The next provision stated that, in the event of Louise’s death, Colin’s two daughters would, upon the sale of the residence, receive equal shares of the remaining equity after outstanding debts were paid.
After Colin died in 2021, a dispute arose over whether Louise had received the house outright or whether she merely had the right to live there for the remainder of her life.
The daughters argued that Louise had received a life interest, with the daughters ultimately entitled to the property.
Louise argued that the wording was straightforward: Colin had given her ownership of the home.
The Court agreed with Louise.
The Court’s Approach to Interpreting a Will
Justice Mathai emphasized that the fundamental rule in interpreting a will is to determine and give effect to the intention of the testator.
The Court must consider the will as a whole, rather than examining an individual provision in isolation.
The Court also applied what is commonly referred to as the “armchair rule.” This requires the judge to place themselves in the position of the testator and consider the circumstances that existed and were known to the testator when the will was prepared.
Importantly, the Court confirmed that surrounding circumstances can be considered even where the wording of the will does not initially appear ambiguous.
However, there is an important distinction concerning evidence of what the deceased actually said about his intentions.
What the Deceased Said Was Not Enough
The daughters provided evidence that Colin had told them and others that the house would ultimately go to them.
The Court held that these statements were inadmissible direct evidence of Colin’s testamentary intention.
This is an important distinction in estate litigation.
A Court generally will not allow a party to establish the meaning of a written will simply by saying, “The deceased told me what he intended.”
The written will remains the primary evidence of testamentary intention. Otherwise, litigation could effectively create an oral will based on competing recollections of conversations with the deceased.
There are exceptions to this rule, including certain circumstances involving equivocation or an alleged drafting error. Neither exception applied in this case.
The Court could, however, consider evidence concerning the surrounding circumstances known to Colin when he prepared the Will.
The Importance of the Word “Ownership”
Ultimately, the wording of the Will was decisive.
The Court rejected the argument that Colin, because he was a layperson, might have used the word “ownership” when he really meant that Louise could simply continue living in the house.
Justice Mathai noted the obvious distinction between ownership and merely having a right to reside in a property.
If Colin had intended to give Louise only a right to live in the home, he could have said that she was to “reside” there.
Instead, he wrote that Louise was to “assume ownership.”
The Court held that the ordinary meaning of those words indicated an intention to give Louise ownership of the property.
What About the Daughters?
At first glance, the two provisions might appear contradictory.
If Louise received complete ownership, how could Colin provide that the daughters would receive the equity in the property when Louise died?
The Court resolved the issue by interpreting the second provision as applying if Louise died before Colin.
In other words, the Court did not rewrite the first provision to create a life interest simply because the second provision contemplated a future disposition of the property.
The Court concluded:
- “the Will bequeaths Louise full legal ownership of the Residence with a gift-over clause in favour of the respondents if Louise died before Colin.”
This interpretation preserved the ordinary meaning of the word “ownership” while giving effect to the second clause.
The Lesson for Estate Planning
The case demonstrates how a single word can have significant consequences in estate litigation.
There is a substantial legal difference between:
- giving someone ownership of a property;
- giving someone a life interest in a property;
- giving someone a right of residence; and
- giving another beneficiary a gift-over following the death of the first beneficiary.
If a Testator intends a spouse to have the right to live in a property for life, but ultimately wants the property to pass to children, the will should say so clearly.
Likewise, if the intention is to give the spouse complete ownership, the will should not contain language that could reasonably suggest that the children are intended to receive the property later.
Concerns About Homemade Wills
Colin’s Will was handwritten and prepared shortly before major surgery. Although its validity was not ultimately disputed, the wording created significant litigation between his wife and daughters.
The litigation could have been avoided, or at least substantially reduced, by clearly stating whether Louise was receiving:
(1) absolute ownership;
(2) a life estate;
(3) a right of residence; or
(4) ownership subject to some specific restriction or trust.
Estate planning is not simply about deciding who should receive an asset. It is also about specifying the nature and extent of the interest being given.
Conclusion
McCubbin v. McCubbin is a useful reminder that Ontario Courts will generally give effect to the ordinary meaning of the words a testator actually uses.
The Court will consider the Will as a whole and may examine the surrounding circumstances under the armchair rule. However, family members cannot ordinarily replace the written language of a Will with evidence that the deceased allegedly told them what he intended.
For anyone preparing a Will involving a family home, the message is particularly clear:
- If you mean ownership, say ownership. If you mean a life interest, say life interest. If you want the property to pass to someone else later, clearly explain when and how that is to occur.
Ambiguous estate planning can leave a family arguing over a house years after the testator is gone. Clear drafting can prevent that dispute from arising in the first place.
Brian Madigan LL.B., Broker