DATE: 20040611

DOCKET: C40193

COURT OF APPEAL FOR ONTARIO

WEILER, ABELLA and ARMSTRONG JJ.A.

B E T W E E N:

KLARA NOIK

Nancy J. Spies and Benjamin D. Eisner,

for the appellant

Applicant

(Appellant)

• and -

GAD NOIK, ESTATE TRUSTEE WITH A WILL IN THE ESTATE OF GORDON NOIK, DECEASED

Howard S. Black,

for the respondent

Respondent

(Respondent in Appeal)

Heard: April 16, 2004

On appeal from the order of Justice Rose Boyko of the Superior Court of Justice dated May 20, 2003.

ABELLA J.A.:

[1] In his will, Gordon Noik bequeathed his seven rental properties to his adult daughter “provided that” she pay part of the monthly rent she collected to his widow, her stepmother. The issue in this case is the validity of this limitation on his gift to his daughter.

Background

[2] Gordon Noik died in 2002. He had been married to Klara Noik, his second wife, for twenty-four years. She was not the mother of his children. His will transferred all of his property to his two adult children, Gad Noik and Miriam Rosen, and to their stepmother, Klara Noik. Gad Noik was the estate trustee. A copy of the will is attached to these reasons as a Schedule.

[3] Mr. Noik left his wife the matrimonial home, “all articles of personal, domestic and household use or ornament”, and the residue of his estate.

[4] In para. 3(e) of his will, Mr. Noik transferred his interest in seven listed properties in North Bay to his daughter, in the following language:

I GIVE all my property wheresoever situate, including any property over which I may have a general power of appointment, to my Trustee upon the following trusts, namely:

to pay or transfer to my daughter MIRIAM ROSEN, of the City of Herzlia, in the State of Israel, my interest in the following properties which are all situated in the City of North Bay, in the Province of Ontario:

470 Chippewa Street West

187 Princess Street West

389 Kingsway Street

899 O’Brien Street

363 Lansdown Avenue

229 Victoria Street West

233 Victoria Street West

PROVIDED that my said daughter pay to my wife, KLARA NOIK, $1,300.00 monthly from the rent derived from said properties.

[5] The requirement that $1,300 be paid monthly from the rent to Mr. Noik’s widow is the source of the dispute between the parties. The properties have by now all been sold.

[6] When the trustee informed Mr. Noik’s widow that, in his view, she was not entitled to the monthly payments, she sought directions from the Superior Court. The motions judge held that “the title must go to the daughter absolutely without condition.”

[7] The motions judge’s conclusion about the testator’s intention was: “On its face, the testator intended to benefit both his daughter and his wife, by giving his property to his daughter on the condition that she pay a portion of the rent to her stepmother.” However, she found the provision that Mr. Noik’s daughter pay rent to the appellant to be a “condition subsequent” which was “highly uncertain”.

[8] As a result, she found this provision to be void, finding that while its purpose was clear, its terms were uncertain. The motions judge based her analysis on the conventional rule against uncertain conditions in Re Sifton, [1938] O.R. 529 (P.C.). Specifically, she found the uncertainty revolved around the fact that the will did not stipulate for how long the daughter was required to pay the monthly amount, nor did it state whether she could dispose of her property.

[9] The motions judge also found that the direction to pay rent unlawfully restrained the daughter’s “intended use of the property”.

Analysis

[10] In interpreting wills, the objective is to determine the testator’s intention. In this case, Mr. Noik’s intent could hardly be clearer. The motions judge found, and both parties acknowledge, that Mr. Noik intended this provision to benefit both his daughter and his wife. I see no legal impediment to interpreting the will in a way which implements this intention.

[11] It seems to me that before a provision can be found to be sufficiently uncertain to defeat the intention of the testator, the threshold should be a high one. This provision falls well below that invalidating height.

[12] In Re Sifton, the uncertain clause was struck because the testator’s intent could not be discerned. The contrary is true in this case. Reading the will as a whole and this provision in particular, it is clear that the testator intended not only that his daughter get the benefit of owning the rental properties, but also that the gift carried with it a duty to pay $1,300 monthly to his widow during her lifetime. Striking the provision requiring the monthly payments would defeat Mr. Noik’s intention that both his daughter and his widow benefit from the rental properties, an intention clearly reflected in the bequest.

[13] I also disagree with the motions judge’s finding that the requirement to make monthly payments improperly restrained the daughter’s ability to use and enjoy her property absolutely. Restraints on use, enjoyment and alienation are generally prohibited on the principle that gifts of property should be given absolutely.

[14] In my view, Mr. Noik did not grant his daughter an absolute interest in the rental properties. Rather, the interest he granted her was limited by the requirement to make monthly payments to her stepmother. This internal limit is an integral part of the definition of the gift. See Re Robinson (1976), 15 O.R. (2d) 286 (Ont. H.C.).

[15] Even if the requirement to make payments to Mr. Noik’s widow is a condition subsequent, and not an internal limit on the definition of the gift, I still would not find that it restrains his daughter’s right to use and enjoy the property. In Angus v. Angus Estate, [1989] 35 E.T.R. 170 (Ont. H.C.), the testator left his residence to his second wife “absolutely” but stated that if she sold the residence, she had to pay half the proceeds to their young son. Chadwick J. held that the requirement to pay half the proceeds was not a restraint on alienation, as the gift was intended to benefit both the wife and son. He observed that the testator had made his concern for his son clear in other parts of the will. See also Allen v. Allen, (1994) 2 E.T.R. (2d) 276 (Sask. Q.B.).

[16] Similarly, in this case there are other provisions in Mr. Noik’s will demonstrating his intention to care for the financial needs of his widow, including her right to the matrimonial home.[^1]

[17] The daughter’s duty to make payments to her stepmother does not unlawfully restrain her right to use and enjoy the property. She is entitled to do as she wishes with the properties, provided that in exchange for receiving them, she pay $1,300 monthly to her stepmother during her lifetime. Read this way, the testator’s clear intention to benefit his daughter and his widow can be respected and realized.

[18] I would allow the appeal, set aside the order of the motions judge, and order that Klara Noik is entitled to $1,300 a month during her lifetime from Mr. Noik’s daughter. I would not order costs.

RELEASED:

“JUN 11 2004” “R.S. Abella J.A.”

“I agree K.M. Weiler J.A.”

“I agree Robert P. Armstrong J.A.”

[^1]: In an earlier appeal about a different provision of this same will, this court found that Mr. Noik bequeathed his entire interest in the matrimonial home to his widow, not just a life interest. See Noik v. Noik Estate, [2004] O.J. No. 1993 (C.A.).