Court File and Parties
COURT FILE NO.: CV-23-00094111-0000 DATE: 2024/03/05 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Iva Mohapel, Applicant AND Douglas Michael Charles Young, personally and in his capacity as estate trustee, Laura Elizabeth Young, and Catherine Margaret Dahl, Respondents
BEFORE: Justice R. Ryan Bell
COUNSEL: David Scharf, for the Applicant Wayne D. Young,[^1] for the Respondents
HEARD: February 29, 2024
Endorsement
Overview
[1] The applicant, Iva Mohapel, seeks an order that the respondent, Douglas Michael Charles Young, as estate trustee of the estate of Edward Michael Young, distribute the residue of the estate in four equal shares to Iva and each of the respondents.[^2]
[2] Paragraphs 4(e) and (f) of Michael’s Last Will and Testament dated November 3, 2022 provide:
- 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:
(e) In the event that IVA MOHAPEL and I do not have any ownership interest either separately or jointly in a primary residence at my death then to transfer the rest and residue of my estate to IVA MOHAPEL, LAURA ELIZABETH YOUNG, CATHERINE MARGARET DAHL and DOUGLAS MICHAEL CHARLES YOUNG in equal shares.
(f) In the event that IVA MOHAPEL and I do have an ownership interest in a primary residence at my death either separately or jointly then to transfer the rest of my estate to LAURA ELIZABETHER YOUNG, CATHERINE MARGARET DAHL AND DOUGLAS MICHAEL CHARLES YOUNG in equal shares.
[3] The Will was made in contemplation of marriage. Michael and Iva were not married when Michael passed away on February 4, 2023. There is no dispute that Michael and Iva were financially independent. They each owned and lived in separate residences. They considered a cohabitation agreement but no agreement was signed before Michael’s death.
[4] Michael was a widower with three children – the respondents – from his marriage. Iva is divorced with an adult son.
[5] When Michael died, he was the sole owner of his primary residence at 16 Ascot Avenue Ottawa. Iva was the sole owner of her primary residence at 10 Brandy Creek Crescent, Ottawa. They did not share any ownership interest in a primary residence.
[6] Iva submits that under paragraph 4(e) of the Will, she is entitled to a one quarter equal share of the residue of Michael’s estate. Douglas, as executor, argues that under paragraph 4(f), Iva is not entitled to a share of the residue because Iva “separately” had an ownership interest in a primary residence (her own) when Michael died.
[7] For the following reasons, I find that Michael’s testamentary intentions are clearly expressed in the Will and that Iva is entitled to an equal share of the residue of the estate under paragraph 4(e).
Analysis
[8] When interpreting a will, the court’s task is to determine the testator’s actual or subjective intention as to how they intended to dispose of their property: Ross v. Canada Trust Company, 2021 ONCA 161, at para. 36. Justice Brown, writing for the Court, observed that the approach to will interpretation as set out in Burke (Re)[^3] includes studying the will’s contents and the use of what is known as the “armchair rule”: Ross, at para. 38.[^4] Where the court is not convinced that the testator’s intention can be discerned from the will itself, the court is to “put itself in the position of the testator at the point when [they] made [their] will, and, from that vantage point, reads the will, and construes it, in the light of the surrounding facts and circumstances”: Ross, at para. 38.
[9] In my view, Michael’s intention can be discerned from the contents of the Will itself. I begin with paragraph 4(f). Substituting the plural pronoun “we” for the compound subject “Iva Mohapel and I”, paragraph 4(f) reads: “In the event that [we] do have an ownership interest in a primary residence at my death either separately or jointly then to transfer the rest and residue of my estate to [the respondents] in equal shares.” On its face, paragraph 4(f) applies in the event that, at the time of Michael’s death, Iva and Michael – “we” – owned a primary residence. They did not.
[10] Douglas contends that paragraph 4(f) applies because Iva, separately from Michael, had an ownership interest in her primary residence when Michael died. With respect, this interpretation conflicts with the correct grammatical construction of the clause for three reasons. First, Douglas’ interpretation requires a single subject – “In the event that [either] Iva Mohapel [or] I...” Second, his interpretation ignores the use of the plural form of the verb “have.” Third, Douglas’ reliance on “separately” to mean that Iva could own a separate residence from Michael is misplaced. I agree with Iva that the words “either separately or jointly” describe the “ownership of a primary residence.” In other words, this phrase describes how Iva and Michael could own a home together: separately, for example, as tenants in common, or jointly. The phrase “Either separately or jointly” does not modify the requirement that Iva and Michael’s ownership must be of a singular primary residence.
[11] Paragraph 4(e) mirrors paragraph 4(f). Substituting the plural pronoun “we” for the compound subject “Iva Mohapel and I”, paragraph 4(e) reads: “In the event that [we] do not have an ownership interest either separately or jointly in a primary residence at my death then to transfer the rest and residue of my estate to [Iva and the respondents] in equal shares.” Paragraph 4(e) applies because, at the time of Michael’s death, Iva and Michael – “we” – did not own a primary residence. They each owned their own primary residence, a different scenario.
[12] In considering whether the testator’s intention can be discerned from the will itself, the court is to study not only the provisions of the will in dispute, but the entire will: Ross, at para. 38. Iva argues that paragraph 7 of the Will confirms Michael’s intention that on his death, Iva would receive “something.” Paragraph 7 reads:
WITH RESPECT TO THE SALE OF PROPERTY and the division of property amongst the beneficiaries, it is my wish and expectation that my son, DOUGLAS MICHAEL CHARLES YOUNG, as executor will fully consult with his sisters, LAURA ELIZABETH YOUNG, CATHERINE MARGARET DAHL and IVA MOHAPEL prior to reaching decisions regarding the disposition of my assets and the timing of the disposition.
[13] This instruction to Douglas as estate trustee to consult with Iva, as well as Laura and Catherine, confirms Michael’s intention that Iva would be a beneficiary under the Will. There would be no reason to include her in paragraph 7 otherwise.
[14] While Douglas argues that Iva was otherwise provided for in the Will under paragraph 4(b), that paragraph does not assist Douglas. Paragraph 4(b) reads: “If I am cohabitating with IVA MOHAPEL, at my death all my right, title and interest in my primary residence shall be transferred to IVA MOHAPEL.” In other words, if Iva and Michael were living together when Michael died, then Michael’s interest in his primary residence was to transfer to Iva. But Iva and Michael were not cohabitating at the time of Michael’s death. Paragraph 7 cannot be reconciled with Douglas’ interpretation of the Will that would result in Iva receiving nothing.
Conclusion
[15] I find Michael’s intentions are clearly expressed in the Will. On Michael’s death, Iva and Michael did not have an ownership interest in a primary residence. In these circumstances, Michael intended that Iva would receive an equal share of the residue of the estate. Iva’s application is granted. There will be an order that Douglas, as the executor of the estate, distribute the residue of the estate in four equal shares to Iva, Douglas, Laura, and Catherine.
[16] As the successful party, Iva is entitled to her costs of the application. Iva requests her partial indemnity costs in the total amount of $6,567.31. I find that this amount is fair and reasonable having regard to the nature of the proceeding, the importance of the issue to both sides, and the respondents’ own partial indemnity costs. Iva’s costs of the application are fixed in the amount of $6,567.31 and are to be paid by the respondents within 30 days.
Justice R. Ryan Bell Date: March 5, 2024
Footnotes
[^1]: Mr. Young, counsel for the respondents, is not related to the parties or to the deceased. [^2]: For clarity, I will refer to the parties by their first names. I will refer to the deceased as Michael. [^3]: , [1960] O.R. 26 (C.A.), at p. 30. [^4]: Citing Ian Hull and Suzana Popovic-Montag, Feeney’s Canadian Law of Wills, 4th ed. (Toronto: LexisNexis, 2020) at §10.46.