Mark Muir Rodenburg

The appellant, Bishop Girgis, appealed a lower court decision that interpreted and rectified a will to distribute proceeds from a property sale to the estate of the deceased's brother, rather than to the residuary beneficiary (Bishop Girgis).

The Court of Appeal dismissed the appeal, upholding the rectification on the basis that it gave effect to the testator's plain intention, despite disagreeing with the application judge's specific analytical path.

Costs were awarded against the appellant.

This costs endorsement followed two applications concerning the interpretation and rectification of a will.

The court had previously dismissed the interpretation application brought by Bishop Moussa and granted the rectification application brought by Sarwat Mansour, supported by Samia Messieh.

The court applied the modern approach to costs in estate litigation, scrutinizing the conduct of the parties.

While acknowledging the initial drafting error in the will necessitated legal advice, the court found Bishop Moussa's continued pursuit of an "absurd" interpretation led to unnecessary litigation.

Consequently, Bishop Moussa was ordered to pay a significant portion of the costs incurred by Ms. Messieh and Mr. Mansour, with some allowances from the estate for initial advice related to the drafting error.

The court addressed two applications concerning the will of Sidky Nassif: an interpretation application by Bishop Moussa and a rectification application by Sarwat Mansour, the estate trustee.

The central issue was the disposition of Mr. Nassif's house, specifically whether it should pass to Bishop Moussa as part of the residue or to Mr. Nassif's brother, Shoukry Messieh, after his sister Yvonne Nassif's life estate.

The court found the will ambiguous and that Bishop Moussa's interpretation led to an absurd result inconsistent with the testator's intentions.

Applying the "armchair rule" and considering extrinsic evidence, including solicitor's notes, the court concluded there was a drafting error.

Bishop Moussa's application for interpretation was dismissed, and Sarwat Mansour's application for rectification was granted, amending the will to ensure the house transferred to Shoukry Messieh upon Yvonne Nassif's death.

Following the dismissal of the plaintiff's motion for summary judgment regarding a disputed legacy in her late father's will, the court determined the issue of costs.

The court rejected the plaintiff's argument that the traditional estate costs rules should apply, finding that the litigation was caused by the drafting solicitor's error, not the testator's actions.

Applying normal civil costs rules, the court ordered the plaintiff to bear her own costs due to her tactical conduct, ordered the drafting solicitor to bear his own costs because his error caused the litigation, and ordered the plaintiff to pay the partial indemnity costs of the estate and foundation.

The plaintiff sought summary judgment for an $800,000 legacy from her late father's secondary will, arguing for a literal interpretation or that a later clause should prevail.

The defendants argued a drafting error, contending the legacy was conditional on the plaintiff not receiving property under the primary will, which did not occur.

The court applied the "armchair rule" and the Lipson principles for correcting drafting errors, finding an obvious error in the will.

The court dismissed the plaintiff's motion for summary judgment and ordered the will to be amended to reflect the testator's true intention that the legacy was conditional on the property transfer not occurring.

In a long-standing and highly acrimonious family trust dispute, the court considered multiple motions, including motions to dismiss for delay and abuse of process, and motions for a further and better accounting.

The court found that the plaintiffs (two of the sons) had engaged in an abuse of process through a 'scorched-earth' litigation strategy, including failing to produce relevant documents they controlled, changing counsel repeatedly, refusing to mediate, and launching collateral attacks.

Consequently, the court dismissed their actions.

However, recognizing that the trusts still required an accounting for the benefit of the other beneficiaries (the grandchildren), the court ordered the remaining trustees to provide a further and better accounting, and ordered the redemption of the matriarch's shares in the underlying holding company.

The moving party, in the midst of complex family trust litigation, sought leave to withdraw admissions made in a previous affidavit and to file three new affidavits.

The moving party argued the admissions regarding multi-million dollar shareholder loans were made inadvertently due to confusion and reliance on her former, now-deceased counsel.

The responding parties opposed, arguing the admissions were formal and the new evidence was an attempt to repair her case mid-hearing.

The court granted the motion, finding the admissions were likely inadvertent, raised a triable issue, and caused no non-compensable legal prejudice to the responding parties.

The court emphasized the need to decide the case on its true merits rather than a solicitor's or party's mistake.

The applicants brought a motion to remove Cambridge LLP as solicitors of record for Sheila O’Donovan and to add Adam Cappelli as a party respondent.

The court applied a nine-factor test to assess the solicitor removal request, considering the likelihood of Mr. Cappelli being a witness and potential conflicts.

The court found no real conflict and upheld the client's right to choose counsel.

The motion to add Mr. Cappelli as a respondent was dismissed due to the advanced stage of the proceedings and delay by the applicants, though without prejudice to a future application for passing accounts.

The estate trustees sought the opinion, advice, or direction of the court regarding the application of the rule in Saunders v. Vautier to a testamentary trust created for a beneficiary under a limited property will.

The court addressed whether the trust known as the “Susan Fund” could be terminated with immediate distribution depending on whether the beneficiary exercised a power of appointment by deed or will.

The court held that the rule in Saunders v. Vautier would not apply where no appointment was made, but would apply if the beneficiary appointed another beneficiary or her estate by deed.

The reasons clarified the implications of an earlier decision concerning a related trust and confirmed when the beneficiary could compel termination of the trust.

The beneficiary of a testamentary trust applied for termination of the trust and immediate distribution of its capital.

The trust provided that the beneficiary would take the capital absolutely 21 years after the testator’s death and granted her a power of appointment by deed or will.

The estate trustees sought the court’s opinion on whether the rule in Saunders v. Vautier applied, arguing that contingent interests and a potential gift-over prevented early termination.

The court held that the beneficiary’s life interest combined with the power of appointment by deed gave her effective dominion over the trust property and that no other person could ultimately benefit from the trust.

Applying the rule in Saunders v. Vautier and relying on Robinson v. Royal Trust Co., the court concluded that the beneficiary was entitled to immediate distribution of the trust assets.