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Re McColgan [1969] DLR 572.

Facts:

M includes P in his will. The provision gives her a house until her death or until she stops residing in it. They were close friends for three decades, and discussed marriage but never married. P frequently stayed with M for extended periods of time to nurse him in his illness. M knew that P had a health condition that prevented her from doing a great deal of housework.

Issue(s):

(1) Is the line "until she ceases to reside therein" a condition precedent or subsequent?
(2) Is it void for uncertainty?

Ratio:

Conclusion: "Until she ceases to reside therein" is a condition subsequent as it is independent to the scope of the right but comes after to defeat it, and it is void for uncertainty.

Analysis:

Expressed Intent=Fundamental Rule: The fundamental rule in construing language of a will is to give it the meaning that the testator intended. That is, what the words mean in this particular case (I.e. expressed intention) (Perrin v Morgan)
-Quotes of little use: Because the context is so different from one will to another, it seldom happens that the words of one are a good guide for another. (Abbot v Middleton)
-Context is everything
--APPLICATION: It is clear M wanted to create a "home" for P and therefore it is a life interest and not merely a license to occupy

Subsequent Condition Must be Foreseeable: "...that condition must be such that the Court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine." (Clavering v Ellison)
-APPLICATION: "Until she ceases to reside therein" is a condition subsequent since it is an independent event that comes to terminate an interest

Precedent v Subsequent Condition: Precedent is part of the interest, where as subsequent comes after and can defeat it. (Re Tilbury West Public School and Hastie)
-In the first case, if the condition is void the whole thing fails, in the second case, the interest survives without the condition (Chesire's Modern Law of Real Property)
--The difference is between being able to assess the size of the interest, and an independent requirement.
-APPLICATION: Residing in a place is far more unclear and wills have been defeated on much less (Fillingham v Bromley)
--It is clear, given that he knew about P's health and financial state, that he intended her to enjoy the house without any cost to her.

Holding:

The condition was severed from the interest.


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