COURT FILE NO.: 01-2729/12

DATE: 20140526

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Terence R. Doidge, as Estate Trustee with a Will of the Estate of Violet Rosanne Kapousouzian, deceased, Applicant

AND:

Agnes Spiak, Estate of Margaret Saunders, Estate of Edward Minoogian, Estate of Vartkes Minoogian, Valentina Popova, Garo Sympat Ovanesian and The Children’s Lawyer, Respondents

BEFORE: Wilton-Siegel J.

COUNSEL:
Daniel J. Dochylo, for the Applicant

Paul E. Trudelle, for the Respondents, Valentina Popova and Garo Sympat Ovanesian

HEARD: April 14, 2014

ENDORSEMENT

[1] This is an application for the opinion, advice and direction of the Court by the Estate Trustee of the Estate of Violet Rosanne Kapousouzian, deceased (“Violet” or “the testatrix”), as to the proper disposition of three of four residual shares of her Estate pursuant to her Last Will and Testament dated December 3, 1973 (the “Will”) that were granted to parties who predeceased Violet.

Factual Background

[2] Violet died on November 5, 2011 having executed her last Will on December 3, 1973.

[3] The Will had the following material clauses:

(a) It appointed William Kapousouzian, Violet’s brother, as Estate Trustee, with the Applicant, Terence R. Doidge, as alternate Estate Trustee;

(b) It provided that the residue of Violet’s Estate was to be transferred to William if he survived Violet for thirty days or more. However, he predeceased Violet;

(c) In the event that William did not survive Violet for thirty days, clause 3(d) of the Will provided that the residue of the Estate was to be divided into “four equal shares to be disposed of as follows:

(i) To pay or transfer to my cousin, Mrs. MARGARET SAUNDERS, Williamstown, Mass., U.S.A., one share of my estate for her own use absolutely;

(ii) To pay or transfer to my cousin, Mrs. AGNES SPIAK, 812 - 19th Street, Watervliet, New York, U.S.A., one share of my estate for her own use absolutely;

(iii) To pay or transfer to my cousin, EDWARD MINOOGIAN, Watervliet, New York, U.S.A., one share of my estate for his own use absolutely;

(iv) To pay or transfer to my cousin, VARTKES MINOOGIAN, Watervliet, New York, U.S.A., one share of my estate for his own use absolutely;”

The four named alternate residuary beneficiaries, Margaret Saunders, Agnes Spiak, Edward Minoogian, and Vartkes Minoogian, are herein referred to collectively as the “Named Beneficiaries.”

[4] The Will did not provide for a further gift over in the event that any of the Named Beneficiaries predeceased Violet.

[5] The Named Beneficiaries were siblings of each other. Three of the four Named Beneficiaries are deceased. Agnes Spiak is still living. The mother of the Named Beneficiaries, Ardemes Bzdigian, was a cousin of Violet on her father’s side. The Named Beneficiaries are therefore Violet’s first cousins, once removed.

[6] According to a letter written by Violet to Margaret Saunders in 1988 (the “1988 Letter”), the mother of the Named Beneficiaries, Ardemes Bzdigian, Violet’s cousin, was brought up by “the family” (presumably Violet’s grandparents) after the death of Ardemes’ mother in childbirth in 1900. Ardemes was “sent” to the United States to marry the father of the Named Beneficiaries. Ardemes “consistently wrote letters to [Hagop, Violet’s father] to come to USA, to be united with her,” his niece. Hagop determined to move to the United States, over his wife’s objections; but when the family arrived in Canada en route to the United States, the quota for Armenians to immigrate to the United States was full. Hagop found work in Toronto and therefore Violet’s family remained there, and “just visited [Margaret Saunders’] family during summer vacations”. Ardemes died in 1960, before the Will was executed.

[7] The applicant’s extensive efforts to locate any other relatives of Violet have also identified two next of kin, Valentina Sympat Popova (“Popova”) and Garo Sympat Ovanesian (“Ovanesian”) (collectively, the “Bulgarian Cousins”). They are maternal first cousins of Violet, living in Bulgaria. Their father Zaruhi Kirkor Ovanesian was the brother of Violet’s mother and therefore her uncle.

[8] There is evidence that Violet had contact with Popova and Ovanesian in the 1970s and 80s. In their affidavit, the Bulgarian Cousins say that Violet’s mother, Zabelle, kept contact with her Bulgarian relatives from Toronto, including sending packages of clothing to Popova. They state that, after Zabelle’s death, they corresponded with Violet, who wrote in Armenian and later, English. Popova’s daughter, Elizabeth Radeva, wrote to Violet in English because the Bulgarian Cousins could not write in Armenian. The Bulgarian Cousins are in possession of an envelope addressed by Violet to their father and mother, “& family,” dated 1972. The Bulgarian Cousins and their father invited Violet to visit Bulgaria. She did so, twice, in 1977 and 1979. The Bulgarian Cousins say that they felt close to Violet. They took pictures during her 1977 and 1979 visits. They say that Violet told them that Bulgaria was close to her heart. Correspondence between Violet and the Bulgarian Cousins (presumably, with Elizabeth Radeva) “suddenly stopped” in the mid-1980s, possibly because the Bulgarian Communist regime had intercepted the letters. The Bulgarian Cousins state that they have “precious memories” of Violet.

[9] As a result of the inquiries conducted under the direction of the Estate Trustee, and of the evidence now found in the affidavit of the Bulgarian Cousins, the Estate Trustee has reached the following conclusions:

1. On Violet’s mother’s side, she had five or six cousins: Garabed “Garo” Hatchikian (predeceased), Takvor “Tarkos” Artin Hatchikian (predeceased), Zabelle Artin Panosian (predeceased – not mentioned by the Bulgarian Cousins in their affidavit), Hrayr Ovanesian (predeceased – not located by the investigator for the Estate Trustee) and the Bulgarian Cousins;

2. On Violet’s father’s side, it has not been possible to identify any living blood relatives other than Ms. Spiak and the children of the Named Beneficiaries. The prospect of locating other living blood relatives appears very unlikely, given that the search for records of persons named Kapousouzian in Greece has not yielded any positive result;

3. Given that Violet was born in 1923, it is highly unlikely that any aunts or uncles would have survived her; and

4. Popova and Ovanesian, Violet’s first cousins, therefore appear to be Violet’s closest identifiable next-of-kin. They both live in Bulgaria, were served with the within application, and appeared on the hearing of the application.

It should be noted that neither Ms. Spiak nor any representative of any of the estates of the Named Beneficiaries appeared on this application, although each was served.

Analysis and Conclusions

[10] It is a general rule that where a residual gift lapses, it passes on an intestacy. This rule is subject to two exceptions: (1) where the residual gift is a class gift; and (2) where there is a contrary intention in the Will. I will address each exception separately after setting out certain principles of interpretation of a Will.

Principles of Construction of a Will

[11] In the interpretation of a will, as contemplated in Re Burke, 1959 113 (ON CA), [1960] O.R. 26 (C.A.) at p. 30, a court must ascertain the testator’s subjective intention at the time of execution of the will:

Each Judge must “ endeavour to place himself in the position of the testator at the time when the will was made. He should concentrate his thoughts on the circumstances which then existed and which might reasonably be expected to influence the testator in the disposition of his property.”

[12] In ascertaining such intention, a court should examine the circumstances surrounding the execution of the will as well as the words of the will itself: Rondel v. Robinson Estate, 2011 ONCA 493, 106 O.R. (3d) 321, at para. 26.

[13] In addition, courts generally proceed on the basis of the “golden rule” of construction of a will that presumes that a testator did not intend to die intestate. Accordingly, if a will is capable of two constructions, one of which disposes of the entire estate, the other of which results in a partial intestacy, a court will prefer the former: Tribble Estate v. McGuire (1993), 1 E.T.R. (2d) 69, (Ont. Gen. Div.), at para. 12.

Class Gifts

[14] In certain circumstances, courts have found that where a testator makes a gift to a class of persons and a class member predeceases the testator, the gift to the deceased individual goes to enhance the shares of the other class members.

[15] In this case, however, the four Named Beneficiaries were named individually. I am not persuaded that Violet intended to treat the Named Beneficiaries as a class.

[16] In Re Griffith, Maritime Trust Co. v. Griffith, 1950 263 (NB CA), [1951] 1 D.L.R. 551 (N.B.C.A.), at pp. 555-57, the court concluded that gifts to several persons designated by name were not class gifts based entirely on the language of the will and case law that supported the conclusion.

[17] I agree with the respondents that Re Griffith is the closest to the case at bar insofar as there is no language in the Will that supports a class gift. As such, the circumstances are distinguishable from those in Re Telfer, 1963 308 (ON SC), [1964] 1 O.R. 373 (H.C.J.), in which the court found a class gift based on language in the will demonstrating an intention to restrict the beneficiaries to parties who were not confined in a mental institution, at pp. 375-76.

[18] On the basis of the foregoing, I find that there is no basis for a class gift to the Named Beneficiaries.

Contrary Intention

[19] In some cases, courts have also applied the “contrary intention” test to lapsed residuary gifts: see Resnick v. McGuire (2007), 39 E.T.R. (3d) 298 (Ont. S.C.J.), at para. 18.

[20] In this case, there is some evidence that would support a contrary intention. Violet had personal relationships with at least Margaret Saunders, as well as family ties with each of the Named Beneficiaries.

[21] On the other hand, while each of the four Named Beneficiaries were related to Violet as first cousins once removed, they did not exhaust the class of relatives known to Violet at the time of execution of the Will. The evidence strongly suggests that Violet knew of the Bulgarian Cousins at the time of the execution of the Will. Violet’s mother had a relationship with the Bulgarian Cousins spanning many years. Violet continued that relationship by corresponding with them through Popova’s English-speaking daughter from at least 1972 to 1979, although this post-dated the Will.

[22] The circumstances are therefore distinguishable from the two decisions cited to the Court in which the court found a contrary intention based on the fact that the intestacy beneficiaries were total strangers to the testator and the testator believed that the residuary beneficiaries named in her will were the testator’s only remaining relatives: Resnick v. McGuire; Frohlich Estate v. Wedekind, 2012 ONSC 3775.

[23] Moreover, while Violet had a personal relationship with the Named Beneficiaries, there is no evidence that she had such a relationship with any of their children. Further, she was aware of the deaths of the three Named Beneficiaries who predeceased her and did not change her will to address the intestacy that had arisen.

[24] On balance, the foregoing evidence is not sufficient to establish a contrary intention on a balance of probabilities.

[25] The only additional evidence before the Court is the statement of her solicitor at the time of execution of the Will that it was apparent to him that Violet considered the Named Beneficiaries to be her only family. The solicitor does not say, however, that Violet expressly stated that she had no other family alive at the time of making her Will. In the absence of such a statement of the testatrix, I do not think that the Court can find a contrary intention on the basis of this evidence. The Court cannot draw an inference of a contrary intention from an impression of the solicitor of forty years ago in the absence of other supporting evidence.

[26] Accordingly, I conclude that the evidence before the Court is not sufficient to find an intention that the lapsed residuary gifts should devolve on the Named Beneficiaries.

Additional Issue

[27] I have also addressed the possibility that the gifts to the deceased beneficiaries should be distributed to their estates. There is, however, no evidence in the Will of any such intention. It would have been easy for Violet to have provided gifts over to the descendants of the Named Beneficiaries if that had been her intention.

Conclusions

[28] As noted above, the “golden rule” of construction of a will is that a testator did not intend to die intestate. I have considered the facts pertaining to a possible class gift and a contrary intention in light of this presumption. I have concluded, however, that the facts before the Court do not establish the existence of either a class gift or an intention that the residuary gifts would not pass on intestacy. Accordingly, pursuant to s. 47(6) of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”), the residue falls to be divided “among the next of kin of equal degree of consanguinity to the intestate equally without representation”. In this case, the closest next of kin that have been identified who survived Violet are her two first cousins, Popova and Ovanesian.

Disposition of the Residuary Estate

[29] In the present case, there is an indication that Hagop Kapousouzian, the father of Violet, had siblings, although there is no evidence of their names. Over two years have passed since the testator’s death. The Estate Trustee has conducted inquiries through Violet’s known friends and through the persons named in the Will. With the assistance of a qualified investigator in Bulgaria and counsel in Greece, extensive efforts, including archival searches, phone calls and social media contact, have been made in a targeted manner.

[30] The value of the estate at present is approximately $349,000, although the net amount to be distributed will be smaller after costs and expenses of the administration, legal costs and trustee’s compensation, and a claim against the Estate. The maximum amount to be distributed on an intestacy is three-quarters of the net residue.

[31] I am satisfied that the Estate Trustee has discharged his duty to ascertain and locate Violet’s next of kin who would take on an intestacy. I am also satisfied that this is an appropriate circumstance to make a Benjamin order permitting a distribution of the intestate portions of Violet’s estate equally to Popova and Ovanesian on the basis that they are the only surviving next of kin of Violet of the closest degree of consanguinity.

[32] Accordingly, an order should issue in the form approved by the parties on this application giving effect to the determination in this endorsement.

Wilton-Siegel J.

Date: May 26, 2014