Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20241216 DOCKET: COA-24-CV-0430 & COA-24-CV-0431

Brown, Huscroft and Miller JJ.A.

DOCKET: COA-24-CV-0430

BETWEEN

Bishop Moussa Ad Emile Aziz Girgis Applicant (Appellant)

and

Sarwat Mansour in his Capacity as Estate Trustee for the Estate of Sidky Nassif and Samia Messieh, in her Capacity as Estate Trustee for the Estate of Shoukry Nassif Messieh, deceased Respondents (Respondents)

APPLICATION UNDER section 50(1) of the Estates Act, R.S.O. 1990, chapter e.21, and Rules 14.05(3)(a) and (d), 74.15(1)(d) and (i) and 74.17 of the Rules of Civil Procedure

DOCKET: COA-24-CV-0431

AND BETWEEN

Sarwat Mansour in his Capacity as Estate Trustee for the Estate of Sidky Nassif Applicant (Respondent)

and

Bishop Moussa Ad Emile Aziz Girgis* and Samia Messieh, in her Capacity as Estate Trustee for the Estate of Shoukry Nassif Messieh, deceased Respondents (Appellant*)

Counsel: Jacob Klugsberg, Mark A. Ross, and Eric Brousseau, for the appellant Sean Lawler and Preston Tu, for the respondent Sarwat Mansour in his Capacity as Estate Trustee for the Estate of Sidky Nassif (COA-24-CV-0431) Mark Muir Rodenburg, for the respondent Sarwat Mansour in his Capacity as Estate Trustee for the Estate of Sidky Nassif (COA-24-CV-0430) Barry L. Yellin and Brianne Powell for the respondent Samia Messieh, in her capacity as Estate Trustee for the Estate of Shoukry Nassif Messieh, deceased

Heard: December 13, 2024

On appeal from the order (COA-24-CV-0430) and judgment (COA-24-CV-0431) of Justice Ian R. Smith of the Superior Court of Justice, dated March 19, 2024, with reasons reported at 2024 ONSC 1611.

Reasons for Decision

[1] The application judge interpreted and then rectified the will of the deceased, Sidky Nassif, in a manner that would distribute the net proceeds of approximately $270,000 from the sale of the deceased’s Bedford Road, Kitchener, house to the estate of his deceased brother, Shoukry Messieh, instead of forming part of the residue of Sidky’s estate.

[2] The appellant, Bishop Girgis, the residuary beneficiary of Sidky’s estate, appeals.

[3] Paragraph III(d) of the will directed the testator’s trustees to hold the Bedford Road property “as a home for my sister, YVONNE NASSIF, during her lifetime or for such shorter period as my said sister desires. Should my said sister, YVONNE NASSIF, predecease me or should my said sister no longer desire to use the said property as her home, then my Trustee shall transfer the said property to my brother, SHOUKRY MESSIEH, if he survives me” (emphasis added).

[4] Sidky’s will provided that the residue of his estate would pass to the appellant, Bishop Girgis, “to be used by him for the benefit of needy Coptic Christians in Egypt.”

[5] When the testator’s health began to deteriorate, his sister, Yvonne, moved into the Bedford Road house where she cared for the testator until his death. Yvonne continued to live in the house for a few years thereafter until her deteriorating health prompted a move to a long-term care facility, where she remained until her death in 2017.

[6] Two years later the testator’s brother, Shoukry, passed away.

[7] The Bedford Road house was then sold; the net proceeds amount to approximately $270,000. The proceeds are held in trust pending the disposition of these proceedings.

[8] The testator’s estate trustee takes the position that under the will the house passes to the deceased’s brother, Shoukry. Bishop Girgis argues that since the sister, Yvonne, never expressed a desire not to use the property as her home (notwithstanding that deteriorating health forced her to move out of the house and she suffered cognitive impairments in her final years), the property formed part of the estate’s residue.

[9] The application judge found that the will contains an ambiguity that seems to “lead to an absurd result that does not accord with Mr. Nassif’s intentions”: at para. 32. Consequently, the application judge rectified the will so that it gave effect to the testator’s intentions, namely that the Bedford Road property pass to his brother, Shoukry. The application judge amended paragraph III(d) of the will to add the words “or upon the death of YVONNE NASSIF” after the phrase “should my said sister no longer desire to use the said property as her home.”

[10] While we would not have followed the analytical path taken by the application judge – for upon death a human being can no longer desire to use any property – in our view we see no basis to interfere with the result reached by the application judge. The application judge correctly rejected the interpretation of the will proffered by Bishop Girgis and, instead, reached a conclusion that gave effect to the plain intention of the testator.

[11] The appeal is dismissed.

[12] It is most unfortunate that this proceeding has generated an amount of legal costs that is totally out of proportion to the amount in dispute. Nevertheless, we are prepared to accept the parties’ agreement regarding the costs of the appeal. Costs of the appeal shall be paid as follows:

(i) The costs of Sidky’s estate trustee in the interpretation application appeal are fixed in the amount of $15,000. The appellant, Bishop Girgis, shall pay $10,000 of those costs within 30 days of the date of this order, and Sidky’s estate shall pay the remaining $5,000. If Bishop Girgis fails to pay his share of the costs, the estate shall pay the $10,000;

(ii) The costs of Sidky’s estate trustee in the rectification application appeal are fixed in the amount of $10,000, payable by Bishop Girgis within 30 days of the date of this order; and

(iii) The costs of Shoukry’s estate trustee are fixed in the amount of $10,000, payable by Bishop Girgis within 30 days of the date of this order.

[13] All cost amounts are inclusive of disbursements and applicable taxes.

[14] Counsel advise that the only asset left in Sidky’s estate is the proceeds from the sale of the Beford Road property. However, out of an abundance of caution, we direct that in the event Bishop Girgis fails to pay any of the costs of the appeal as ordered, any amount of residue that may remain that would otherwise be distributed to Bishop Girgis should be applied first to satisfy his cost obligations under this decision.

“David Brown J.A.”

“Grant Huscroft J.A.”

“B.W. Miller J.A.”