DATE: 2021-11-15

SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE ESTATE OF DAWOOD MOOLA, also known as DAVID MOOLA, deceased

BETWEEN:

RE: SULIMAN ISMAIL MOOLLA, Applicant

AND:

SCOTT RUNDLE, SULIMAN WADEE, ESTATE OF MOHAMMED IMRAAN WADEE, EBRAHIM WADEE, FATIMA WADEE, DIMITRIOS MPARDAKIS, MARIA MPARDAKIS, PEEYUSH GUPTA and BRAMPTON AND CALEDON COMMUNITY FOUNDATION, Respondents

BEFORE: Penny J.

COUNSEL: Howard Wolch for the Applicant

HEARD (by videoconference in Toronto): November 12, 2021

ENDORSEMENT

Overview

[1] This is a motion for directions as to the interpretation of the last will and testament of Dawood Moola. The will was made on November 24, 2004. The issue requiring the assistance of the court arises out of the dispositive provision in para. 3 of the will which reads:

{in standard form}I Give Devise and Bequeath all my Real and Personal Estate of which I may die possessed in the manner following, that is to say:

{in hand printing}TO MY BROTHERS[‘] [&] SISTER[‘]S LATE BROTHERS [&] SISTERS NEPHEWS [&] NIECES

AND TO SCOTT RUNDLE of CAMBRIDGE ONT. $25,000 CANADIAN

[square brackets indicates possible symbols and punctuation in the handwritten copy]

[2] Scott Rundle’s entitlements have been entirely resolved and play no part in this motion.

Background

[3] Mr. Moola died on August 5, 2013 at the age of 76. He lived in Brampton, Ontario, having emigrated to Canada from South Africa in the 1960s. The deceased never married and had no spouse. There is no evidence he had any children or dependants. He was predeceased by his parents. The deceased had ten siblings, all of whom reside or resided outside of Canada. He was survived by five brothers and sisters and was predeceased by the other five. Since Mr. Moola’s death, one additional sister (Amina Cajee) has also died. The deceased was also survived by a total of 36 nieces and nephews, two of whom have since died. The evidence is that, while alive, Mr. Moola lived a modest lifestyle and was conservative in his spending. He was eager to share with his family in South Africa and he was very generous with his family, gifting and loaning large sums of money to members of his family.

[4] The problem facing the estate trustee, and the court on this motion, is to determine what is meant by the dispositive paragraph of the will which gives the residue of Mr. Moola’s estate to “my brothers sisters late brothers sisters nephews and nieces”.

[5] The notice of motion and the factum of the estate trustee laid out several possible interpretations, given the lack of punctuation and the other ambiguities of the language in para. 3 of the will:

(1) Does the will direct that the Deceased’s estate is to be distributed into nine equal parts to be distributed as follows:

(a) five shares to be paid to each of the five brothers and sisters of the Deceased who survived him (including the estate of Amina Cajee); and

(b) four shares to be divided as follows:

i. one share to be divided equally among the children of the predeceased sibling, Khatija Tilly;

ii. one share to be divided equally among the children of the predeceased sibling, Aisha Wadvalla;

iii. one share to be divided equally among the children of the predeceased sibling, Ruqayyah Bhat; and

iv. one share to be divided equally among the children of the predeceased sibling, Yunis Moolla.

(2) If the answer to Interpretation (1) is in the negative, does the Will direct that the estate be divided in equal shares per capita into 45 equal parts among:

(a) the Deceased’s five brothers and sisters who survived the Deceased;

(b) the estates of the four late siblings who predeceased the Deceased; and,

(c) the 36 nephews and nieces living at the Deceased’s death, including those nephews and nieces who are children of brothers and sisters of the Deceased who survived him?

(3) If the answer to Interpretations (1) and (2) is in the negative, does the will direct that the estate be divided in equal shares per capita into 41 equal parts among:

(a) the Deceased’s five brothers and sisters who survived him; and

(b) the Testator’s 36 nephews and nieces who survived the Deceased? or

(4) If the answers to Interpretations (1), (2) and (3) are all in the negative, then what does the will direct in terms of distribution of the residue of the estate?

[6] The notice of motion and factum were incorrect, however, in that they only reflected four siblings who predeceased Mr. Moola, whereas there were in fact five. Interpretation (1) should be changed to refer to ten equal parts and Interpretation (1)(b) needs to be corrected to reflect five shares to be divided and to add as the fifth share: “(v) one share to be divided equally among the children of Zuleikha Wadee”. Interpretation 2 should refer to 46 equal parts and Interpretation 2(b) should read “the estates of five late siblings”.

[7] All beneficiaries/potential beneficiaries had notice of these proceedings. No one has filed a notice of appearance, although several did participate in the hearing by video conference. Those who did attend were offered the opportunity to address the court, but none chose to do so.

Analysis

[8] The primary purpose of judicial construction of wills is to determine the intention of the testator and it is only when such intention cannot be arrived at with reasonable certainty by giving the natural and ordinary meaning to the words which the testator used that resort is to be had to the rules of construction which have been developed by the courts in the interpretation of other wills: National Trust Co. Ltd. v. Fleury et al., 1965 18 (SCC), [1965] S.C.R. 817 at pp. 828-829.

[9] There is a presumption against intestacy, which is heightened where there is a residuary clause: Babion v. Bird, [1994] O.J. 1929 at para. 18.

[10] The court should attempt to ascertain, if possible, the testator’s actual intent as opposed to an objective intent presumed by law. The Court should be concerned with the meaning that the particular testator attached to the words used in his or her will rather than with a hypothetical standard that might be that of an average or reasonable person. This approach requires the court to consider the testator’s peculiar and unique use of language, all the circumstances surrounding his or her life and all the things known to him or her at the time he or she made his or her will which might bear on the type of dispositions he or she actually intended to make by the will: Moyls Estate (Re), 2010 BCSC 1150 at paragraph 31

[11] The court puts itself in the position of the testator at the point when he or she made his or her will, and, from that vantage point, reads the will, and construes it, in the light of the surrounding facts and circumstances. This approach is commonly referred to as the “armchair rule”. Sitting in the place of the testator, the court assumes the same knowledge the testator had, at the time of making the will, in regard to the nature and extent of his assets, the makeup of his family, and his relationship to his family members. The armchair rule is now treated as an over-arching framework within which a judge applies the various tools for will construction at his or her disposal: Ross v. Canada Trust Co., 2021 ONCA 161, paras. 37 – 41.

[12] Tempering the principle of determining “actual” intent from the words used and the arm chair rule is the further requirement that extraneous subjective evidence of the testator’s intention is inadmissible except in situations of “equivocation” which does not exist here.

[13] The questions posed in this motion critically turn on whether the Deceased: a) intended the distribution of his residue to be per stirpes among his brothers and sisters, with the knowledge that some of his siblings had died and their share would go to the children of the deceased siblings; or, b) intended it to be per capita (either among his surviving brothers, sisters, nephews and nieces or his surviving brothers and sisters, deceased brothers and sisters and surviving nephews and nieces).

[14] While there is a general rule of interpretation that a testator intends equality of distribution such that the distribution will be made per capita rather than per stirpes, the general rule must yield depending on the circumstances. This is particularly so in circumstances involving families. Thus, in Royal Trust Corp. v. Mann, 2001 NSSC 16, Justice Hamilton found that in circumstances of a family distribution, a stirpal interpretation was to be favoured. She wrote:

As to whether the distribution of the residue among issue pursuant to paragraph 1 of his second codicil is to be per stirpes or per capita, I am satisfied it is to be per stirpes even though those words are not used in clause 1 of the second codicil. I am satisfied of this even though there is a prima facie presumption in favour of per capita distribution. In cases of family distribution, a stirpital interpretation is often favoured - Re Hall [1948] 1C.H. 437 at 439 - 440. The fact stirpital distributions are often held to be intended in family distributions, as opposed to distributions among strangers, supports my conclusion …

[15] Similarly, in Haidl et al. v. Sachest et al., 1979 2289 (SK CA), Bayda J.A., at page 303, held that while there is a prima facie rule in favour of a per capita construction, that general rule may be dislodged by the surrounding circumstances in favour of a per stirpital construction. In that case, the evidence of the relationship of the beneficiaries to the testator, coupled with the manner in which the overall bequest was framed, indicated that the testator was considering the beneficiaries not so much as individuals but by households: cited in Re Emerson, 1986 1966 (AB QB).

[16] Having regard to the words used, the surrounding circumstances and the principles of interpretation which govern, Interpretation (1) is the interpretation to be preferred.

[17] On its face, the focus of the chosen words in para. 3 of the will is on family: brothers, sisters, nephews and nieces. The armchair rule evidence is that the Deceased was devoted to his brothers and sisters and to their families. He was obviously aware, in 2004, that some of his siblings had already died. It is only, and immediately, after reference in the will is made to the Deceased’s “late” brother and sisters that reference is then made to “nephews and nieces”. All of this suggests to me that the Deceased was thinking of his nephews and nieces in the context of the sibling familial units; in other words, “not so much as individuals but by households”.

[18] Interpretation (1) results in each sibling or, if deceased, his or her children, receiving a proportionate share of the residue of the Deceased’s estate. I am satisfied, in the circumstances, that this was the intended result of the testamentary disposition Mr. Moola made on November 24, 2004.

[19] I should also say that while the estate trustee did not “advocate” for any particular interpretation, Interpretation (1) is the one favoured by him as well.

[20] Other possible interpretations lead to peculiar results. Part of the problem here is the lack of punctuation. Read literally, with certain inferred punctuation, one might conclude that the Deceased intended to make a devise to his late brothers’ and sisters’ nieces and nephews – in other words, to the children of his living brothers and sisters, not to the children of the deceased brothers and sisters. This does not, however, make any sense in the context. The devise only makes sense if the words “nephews and nieces” are understood from the perspective of the Deceased – he is speaking in para. 3 of his nephews and nieces, not his siblings’ nephews and nieces.

[21] Further, under Interpretations (2) and (3), the families of the living brothers and sister receive a disproportionate share of the residue of the estate. There is nothing in the surrounding circumstances which suggests the Deceased intended to bring about that result.

[22] For these reasons, I order as follows:

The Deceased’s estate is to be divided into nine equal parts to be distributed as follows:

1. five shares to be paid to each of the five brothers and sisters of the Deceased who survived him (including the estate of Amina Cajee); and

2. five shares to be divided as follows:

(a) one share to be divided equally among the children of the predeceased sibling, Khatija Tilly;

(b) one share to be divided equally among the children of the predeceased sibling, Aisha Wadvalla;

(c) one share to be divided equally among the children of the predeceased sibling, Ruqayyah Bhat;

(d) one share to be divided equally among the children of the predeceased sibling, Yunis Moolla; and

(e) one share to be equally divided among the children of the predeceased sibling, Zuleikha Wadee.

[23] No nephews or nieces predeceased the Deceased. Two, however, died subsequently. Their distribution shall be to their children, divided equally, or, if they had no children, to their estates, if possible.

Penny J.

Date: 2021-11-15