January 13, 2026
It is not unusual for a will to provide that a named person is permitted to live in a named property until their death (or another event), and then title passes to the residual beneficiaries (other named people), sometimes referred to as the “remaindermen”.
In the absence of the will saying something different, the life tenant is usually responsible for the ongoing expenses of the house, such as routine maintenance, taxes, utilities and mortgage payments. The life tenant is not responsible for improvements to the property, but there is a grey area regarding renovations that benefit the life tenant but also improve or maintain the value of the property. Sometimes these expenses are divided between the life tenant and those entitled to the remainder interest.
THE ISSUE
But is the life tenant entitled to exclusive possession of the property?
THE CASE
This is the issue in Tyndall v. Noyes a 2025 Ontario superior Court decision.
The answer is that a life tenant is generally entitled to immediate and exclusive possession of the property. This judgment is a Superior Court decision, not an appeal decision, thus not binding on all the other superior Court judges out there. However, it relies heavily on a leading case from the British Columbia Court of Appeal and refers to a number of Ontario Court of Appeal decisions. It is likely to be a reliable guide as to how future cases will be decided.
The distinction that powers the dispute in Tyndall is the difference between a “life tenant” and a “licensee”. We have written before about the importance of distinguishing a lease from a license in the context of real estate leases. In the estates context, a licensee obtains only a right to enter the property for certain purposes, and generally not to exclude others.
In Tyndall, the remaindermen admitted that the life tenant was just that, not a licensee.
The judge applies well established principles of interpretation:
- A will must be interpreted to give effect to the intention of the testator;
- A court must read the entire will, as a whole. The words used in the will should be considered in light of the surrounding circumstances;
- A court must assume that the testator intended the words in the will to have their ordinary meaning; and,
- A court may canvass extrinsic evidence to ascertain the testator’s intention.
This analysis requires a context-based approach.
That process led the judge to distinguish Tyndall from an earlier case where mother granted an ownership interest in her cottage to two of her children but clearly showed an intention that all of her children continue to enjoy use of the property.
The intention in Tyndall was to provide a home for Mr. Tyndall until his death. The will contained no suggestion that the estate trustee could rent out or lease any portion of the property while Mr. Tyndall lived there.
TAKEAWAYS
- The intention of the deceased person is the key factor in determining any will interpretation dispute.
- To avoid disputes about a life interest, careful drafting of the life interest clause in the will is vital.
- It is important in will, as in other documents affecting property, to distinguish between a lease (or tenancy interest) and a licensee.
- Do it yourself wills, whether totally homemade; drafted from a kit, or from an online service, do not provide the same expertise as an experienced wills drafting lawyer.
- The cost of a lawyer drafted will is modest compared to the cost of estate litigation.
WHAT WEILERS LLP CAN DO TO HELP YOU
Our approach in will drafting is to take the time and ask the correct questions to accurately reflect your intentions. In reviewing an existing will, we have the knowledge to interpret the will and determine that intention or apply the other factors necessary to try to avoid estate litigation.
Need help reviewing or drafting a will in Ontario? Our estate planning lawyers are here to help. Give us a call and see if we are the right lawyers for you.