The will divided the house between the children and step-mother, who still lives in the house: what can be done?

  • The court can be asked to order the sale of the property, so each person can get their inheritance now.

 We represented the daughters of the testator.  The will directed that five years after his death, his share of the matrimonial home be divided between his second wife and his three daughters from his first marriage.  The effect of this was that the widow ended up with a 58% interest and the daughters with a 42% interest.  Six years after his death, the widow still lived in the home and the daughters sought to have the home sold so they could have their inheritance.  The widow opposed the sale for various reasons, including that the will contained no power to sell and that she would be unable to buy another home with her share of the proceeds.

The court ordered that the home be sold.  The only reasonable interpretation of the will was that the testator intended to give the widow 5 years in which to transition her life, then the home would be sold.  Any other interpretation would mean that he intended to give his daughters an unmarketable and worthless asset, and would render the five year delay before distribution meaningless.  As such, there was an implied power of sale in the will.  Furthermore, the sale was beneficial for all and was necessary.  To deny a sale would be to frustrate the testator’s intention to provide for his children.  The widow could not afford to live in and maintain the house by herself.  The widow’s proceeds might not allow her to buy another home, but should be sufficient to support her.

If you have a problem relating to a will, contact us.

Read the case:  Zachariuk v. Chepsiuk

Top