DATE: 20040514

DOCKET: C40810

COURT OF APPEAL FOR ONTARIO

GOUDGE, SIMMONS AND JURIANSZ JJ.A.

B E T W E E N:

KLARA NOIK

Benjamin D. Eisner for the appellant

Applicant (Appellant)

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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 30, 2004

On appeal from the order of Justice Harry LaForme of the Superior Court of Justice dated September 24, 2003.

GOUDGE J.A.:

[1] When Gordon Noik died on April 19, 2002, he resided with his wife, the appellant, at 7 Townsgate Drive, Unit #303 in the City of Vaughan. He and the appellant purchased that property as tenants in common in April 1992 and lived there together until his death.

[2] Mr. Noik named his son, the respondent, as the executor of his Last Will and Testament which he signed on July 19, 1994. The will contained this instruction to his executor:

to pay or transfer to my wife, KLARA NOIK, during her lifetime, in the property municipally known as 7 Townsgate Drive, Unit #303, City of Vaughan, Province of Ontario.

[3] The appellant applied to the Superior Court for an interpretation of this provision. The motions judge decided that it conveyed only a life interest in the nature of a right of occupation to the appellant and that since the deceased intended to give all of his real property interests to his two children, and not to his wife, the deceased must have intended that his interest in the matrimonial home be divided equally between his two children, subject only to the appellant’s life interest in the property.

[4] With respect, for the reasons that follow, I disagree with that conclusion.

[5] I begin with several points of agreement between the parties. First they both say that the proper standard of review in this court is that of correctness. I agree since the central issue is the interpretation of the wording of the contested provision in the will. They also agree, as did the application judge, that the deceased intended to dispose of all of his property and possessions through his will, and did not intend that any of it be the subject of intestacy. Again I concur. Finally the parties agree, correctly, that the words “my interest” must be inserted in the disputed paragraph before the words “in the property”.

[6] However, in my view the will cannot be read to yield the interpretation that the deceased intended to give all of his real property interests to his two children and that they should therefore receive his residual interest in the matrimonial home. While the will contains specific bequests of named properties to each of the deceased’s two children it also contains the disputed paragraph that reflects an intention to convey some real property interest in the matrimonial home to his wife, either a life interest as contended for by the respondent or an absolute interest as contended for by the appellant.

[7] Apart from the disputed paragraph, the will does not specifically address the deceased’s interest in the matrimonial home at all, let alone divide it between his two children. The latter result could be achieved only by reading that concept into the will, not by interpreting its language.

[8] The question is not whether the deceased intended, through the disputed paragraph, to give a life interest in the matrimonial home to his wife and, if so, he must be taken to have disposed of his residual interest in that property to his two children. The language of the will simply does not permit the latter conclusion.

[9] Rather the question is to whom the deceased intended to bequeath his interest in the matrimonial home. All agree, as do I, that the deceased intended to dispose of his full interest in that property in his will.

[10] In my view he did so in the disputed paragraph, the only one which references that interest. The phrase “during her lifetime” was used not to limit his wife’s interest to a life interest, but as one of the ways used by the deceased in his will to indicate that his wife was to receive the interest in he conveyed to her only if she survived him. For example, the deceased conveyed his personal property to his wife, “if she survives me”. And the residue of his estate to her unless “his wife should predecease me.”

[11] I conclude that the disputed provision conveys the full interest of the deceased in the matrimonial home to the appellant because she survived him. As contended for by the appellant, the words of this provision in the context of the will as a whole yield this interpretation.

[12] On the other hand, the interpretation contended for by the respondent requires the use of speculation rather than the words of the will to conclude that the deceased intended his interest in the matrimonial home to go to his two children, albeit subject to the appellant’s life interest.

[13] I would allow the appeal, set aside the order below and order that the appellant is entitled to the deceased’s full interest in the matrimonial home.

[14] I would vary the costs order below to allow the appellant $3,000 payable out of the estate.

[15] I would award costs of the appeal to the appellant in the same amount, also payable out of the estate.

Released: May 14, 2004 “STG”

“S.T. Goudge J.A.”

“I agree Janet Simmons J.A.”

“I agree R.G. Juriansz J.A.”