COURT FILE NOS.: CV-19-113-ES & CV-19-900 DATE: 2024/03/19 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Bishop Moussa Ad Emile Girgis Applicant – and – Sarwat Mansour in His Capacity as Estate Trustee for the Estate of Sidky Nassif, Deceased and Samia Messieh, in Her Capacity as Estate Trustee for the Estate of Shoukry Nassif Messieh, Deceased Respondents
Eric Brousseau, Counsel for the Applicant Mark Rodenburg, Counsel for the Respondent Sarwat Mansour Lauren Grimaldi, Counsel for the Respondent Samia Messieh
AND BETWEEN:
Sarwat Mansour in His Capacity as Estate Trustee for the Estate of Sidky Nassif, Deceased Applicant – and – Bishop Moussa Ad Emile Girgis and Samia Messieh, in Her Capacity as Estate Trustee for the Estate of Shoukry Nassif Messieh, Deceased Respondents
Sean Lawler, Counsel for the Applicant Eric Brousseau, Counsel for the Respondents
HEARD: June 21, 2023
I.R. Smith J.
Reasons re: Will Interpretation and Rectification
Introduction
1Sidky Nassif died in 2012, leaving behind a will which now requires interpretation or rectification to give effect to his intentions.
2Mr. Nassif never married and had no children. He did, however, have two surviving siblings at the time of his death, both of whom are referred to in his will. Mr. Nassif, who came to Canada from Egypt, and who had been a member of the Coptic church, also left the “rest and residue” of his estate to “HIS GRACE BISHOP MOUSSA, Bishop of Youth, or his Successor, in Cairo, Egypt, to be used for the benefit of needy Coptic Christians in Egypt.” The key question before me is whether the “rest and residue” of Mr. Nassif’s estate includes the house he owned at 261 Bedford Road in Kitchener, Ontario (the “house”). Bishop Moussa argues that it does, and that the proceeds of the sale of the house should be distributed to him.
3Sarwat Mansour, the estate trustee for Mr. Nassif’s estate, and Samieh Messieh, the estate trustee for the estate of Mr. Nassir’s brother, Shoukry Messieh, argue that it does not. They take the position that Mr. Nassif intended (and that the will provides) that the house would be used by Mr. Nassif’s sister, Yvonne Nassif, until her death or for as long as she desired, and that it would then be transferred to his brother, Mr. Messieh. The proceeds of the sale of the house should, therefore, be distributed to the estate of Mr. Messieh.
4There are two applications before me. First, Bishop Moussa applies for an interpretation of the will (the “interpretation application”). The interpretation application is resisted by Mr. Mansour and Ms. Messieh. Second, Mr. Mansour applies, if necessary ( i.e. , if the will is ambiguous), for the rectification of the will (the “rectification application”) to give effect to what he says were the intentions of Mr. Nassif. The rectification application is resisted by Bishop Moussa. Ms. Messieh takes the position that rectification is unnecessary, but in the alternative supports Mr. Mansour’s position on the rectification application.
Background
5Mr. Nassif died in 2012. He and his siblings had been members of the Coptic Christian community in Kitchener. Through that community, Mr. Nassif developed a friendship with Mr. Mansour and with a priest named Father Athanasius.
6In 2008, without the assistance of a solicitor, Mr. Nassif prepared a will (the “2008 will”) in which he left the house to his brother, Mr. Messieh, and the residue of his estate to Bishop Moussa. In this will, Mr. Mansour is named as estate trustee. Then, in 2009, with the assistance of a solicitor named Jean Levesque, Mr. Nassif executed a new will (the “2009 will”). In this will, Ms. Nassif was named estate trustee, with Father Athanasius and Mr. Mansour named as first and second alternate estate trustees respectively, but again Mr. Nassif left the house to Mr. Messieh and the residue of his estate to Bishop Moussa.
7In 2011, Ms. Nassif, then age 91, was living with Mr. Nassif at the house. In late 2009, she had moved in with her brother to care for him as his health deteriorated, but, according to Ms. Messieh, Ms. Nassif was also in poor health and had difficulty climbing stairs. Fortunately, the house is a bungalow. On instructions from Mr. Nassif provided in a meeting on January 20, 2011, Mr. Levesque prepared a third will (the “final will”) which was executed on April 6, 2011. It is the final will which is the will to be interpreted now. Again, in the final will, Ms. Nassif is named as estate trustee with Father Athanasius and Mr. Mansour named as alternates. In the final will, directions respecting the house and the residue of the estate are provided as follows (emphasis added):
III. I GIVE, DEVISE AND BEQUEATH the whole of my estate, both real and personal, of every nature and kind whatsoever and wheresoever situate unto my said Trustee upon the following trusts, namely:
(d) To hold the property that I use as my principal residence, and municipally known as 261 Bedford Road, in the City of Kitchener, at the time of my death together with all lands and buildings appurtenant thereto 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 .
(e) I hereby direct my Trustee to pay and transfer the rest and residue of my estate to HIS GRACE BISHOP MOUSSA , Bishop of Youth, or his Successor, in Cairo, Egypt, to be used by him for the benefit of needy Coptic Christians in Egypt.
8The question raised by these provisions of the final will is this: what should be done with the house if Ms. Nassif predeceased Mr. Messieh without having signaled that she no longer desired to live in it?
9Mr. Levesque has maintained notes of the meeting he had with Mr. Nassif on January 20, 2011. Those notes provide as follows, verbatim:
Executor: Sarwat Mansour Kitchener
Beneficiary(s)
Property @ 261 Bedford Rd, Kitchener to brother, Shoukry Messieh (brother) (LE)
Property @ 92 Mansion Street, Kitchener, to His Grace, Bishop Moussa, Bishop of Youth, or his successor, if I still own said property.
The rest of my Estate to be paid to his Grace, Bishop Moussa, Bishop of Youth or his successor.
Executors same as previous will,
Life estate to Shoukry Yvonne, house then to Shoukry
10As will be observed, the notes appear to record contradictory instructions, at one point suggesting that Mr. Messieh should have a life estate (“LE”) in the house and then, at the end of the notes, suggesting that Ms. Nassif should have a life estate in the house after which it should pass to Mr. Messieh, whose name is struck out earlier in that entry in the notes. Although the notes refer to a property at 92 Mansion Street, Kitchener, there is no reference in the final will to that property.
11In any case, Mr. Nassif died on May 12, 2012, and on December 20 of that year, Ms. Nassif was appointed estate trustee. She continued to live at the house until December 2015, when she was hospitalized. Differing reasons for this hospitalization are asserted in the evidence, but there is no dispute that Ms. Nassif never returned to the house. She was moved from hospital into long-term care in April 2016 and stayed there until her death on April 18, 2017. Like the final will, Ms. Nassif’s will, also drafted by Mr. Levesque, provided that the residue of her estate be distributed to Bishop Moussa. Her estate trustee is Dina Riad, who was introduced to Ms. Nassif through nuns associated with Bishop Moussa. Ms. Riad also held power of attorney for Ms. Nassif’s affairs prior to Ms. Nassif’s death.
12Upon Ms. Nassif’s death, Father Athanasius decided that he did not want to assume the responsibility of estate trustee of Mr. Nassif’s estate from Ms. Nassif, so Mr. Mansour, as second alternate, took on that role. He retained Mr. Levesque to assist him.
13Mr. Levesque advised Mr. Mansour that the final will provided that the house was to be used by Ms. Nassif for her life and that when she died, the house went to Mr. Messieh. Relying on that advice, Mr. Mansour discussed the matter with Mr. Messieh’s daughter and his wife, Mr. Messieh having previously been diagnosed with dementia. In the circumstances of Mr. Messieh’s ill-health, and because the house (which had not been lived in since 2015) was in a state of disrepair, they asked Mr. Mansour to sell the house “as is,” contents included, and to provide Mr. Messieh with the proceeds. They proposed that the house be sold for $300,000. Honouring this request, Mr. Mansour set about the task of selling the house. An agreement of purchase of sale was entered into on May 29, 2018, with another member of the Coptic church, and the transaction closed on June 25, 2018. Mr. Messieh died on January 28, 2019.
14In 2018, Ms. Riad became aware that Mr. Messieh was planning to sell the house. She understood Ms. Nassif’s estate to be a creditor of Mr. Nassif’s estate and that Bishop Moussa was the beneficiary of both Ms. Nassif’s will and the final will. Her counsel, Mr. Ross, who now also acts for Bishop Moussa, wrote to Mr. Levesque on May 24, 2018, to make inquiries, but received no response. Follow up letters on June 12, 15 and 21, 2018, also went unanswered. Instead, the house was sold with no listing agreement and no appraisal. Bishop Mansour describes these as “highly suspicious circumstances” that “demand an explanation.”
15Eventually, Mr. Levesque sought legal advice and his counsel eventually also took on the role of counsel to Mr. Mansour in his capacity as estate trustee of Mr. Nassif’s estate. They launched the rectification application in the name of Mr. Mansour as estate trustee. That application seeks to amend the words of paragraph III (d) of the will by adding the words emphasized below:
(d) To hold the property that I use as my principal residence, and municipally known as 261 Bedford Road, in the City of Kitchener, at the time of my death together with all lands and buildings appurtenant thereto 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, or upon the death of YVONNE NASSIF, then my Trustee shall transfer the said property to my brother, SHOUKRY MESSIEH, if he survives me.
16I am advised that the net proceeds of the sale of the house, $270,528.01, are at present held in trust pending the resolution of this matter.
Positions of the Parties
17Four distinct and incompatible arguments are made in this case.
18Bishop Moussa says that the meaning of the final will is clear. It provided that Ms. Nassif was to enjoy the house during her lifetime or for such shorter period as she desired and that, should she predecease Mr. Nassif, or should she no longer desire to use the house, then it would transfer to Mr. Messieh. But as Ms. Nassif did not predecease Mr. Nassif, and as there is no evidence that she ever no longer desired to live in the house, upon her death the house became part of the residue of Mr. Nassif’s estate which ought to have been transferred to Bishop Moussa.
19Mr. Mansour also says that the meaning of the final will is clear. On his argument, the final will instructs that upon Ms. Nassif’s death the house should be transferred to Mr. Messieh. In his factum he makes his point as follows: “When somebody is dead clearly, they can be considered to no longer desire to use a property as their home.” When Ms. Nassif died, then, she no longer desired to use the house and, according to the directions in the final will, it should then have been transferred to Mr. Messieh.
20Ms. Messieh says that the meaning of the final will is clear enough to decide what should be done with the proceeds of the sale of the house given how Ms. Nassif’s circumstances unfolded. On this argument, once Ms. Nassif moved into a long-term care home in April 2016 – age 95 and in failing health – there was no reasonable prospect that she would return to the house. At that point the estate trustee of Mr. Nassif’s estate ought to have transferred the house to Mr. Messieh because it was clear that Ms. Nassif no longer “desired” to use the house. Unfortunately, the estate trustee for Mr. Nassif’s estate was Ms. Nassif herself, and in her state of deteriorating health, she was unable to give this instruction.
21Mr. Levesque, the lawyer who drafted the final will, says on Mr. Mansour’s behalf that the final will is ambiguous and that it contains a drafting error that ought to be corrected (rectified) to give effect to Mr. Nassif’s intentions. Those intentions were that Mr. Messieh should inherit the house either when Ms. Nassif no longer desired to use it, or when she died. Since Ms. Nassif predeceased Mr. Messieh, the house should rightfully have been transferred to him.
The Law
22The primary objective of will interpretation is to give effect to the intentions of the testator. In Trezzi v. Trezzi, 2019 ONCA 978, Jamal J.A. (as he then was) put the point as follows (at para. 13, citations omitted):
I agree with the application judge that the court's task in interpreting a will is to determine the testator's actual or subjective intention as to how he intended to dispose of his property. This involves construing the will in light of all the surrounding circumstances to determine the testator's true intention and the court placing itself in the position of the testator at the time that the will was made.
See also Ross v. Canada Trust Company, 2021 ONCA 161, at paras. 35 – 41; Walters v Walters, 2022 ONCA, at paras. 37.
23Four principles guide the court in divining the proper interpretation of the will. Those principles were restated by the Court of Appeal in Barsoski Estate v. Wesley, 2022 ONCA 399, as follows (at para. 21):
(i) a will must be interpreted to give effect to the intention of the testator. No other principle is more important than this one;
(ii) a court must read the entire will, as a whole. The words used in the will should be considered in light of the surrounding circumstances (also known as the “armchair rule”);
(iii) a court must assume that the testator intended the words in the will to have their ordinary meaning; and
(iv) a court may canvas extrinsic evidence to ascertain the testator’s intention.
24The analysis begins with an examination of the words used in the will. If the intention of the testator is discernible by a reading of the will itself, that is, if the language of the will reveals no ambiguity, there is no need to go further. Otherwise, the court resorts to the “armchair rule” described by Simmons J.A. in Dice v. Dice, 2012 ONCA 468, as follows (at paras. 37 – 38; citations omitted):
Where the testator's intention cannot be ascertained from the plain meaning of the language that was used, the court may consider the surrounding circumstances known to the testator when he made his will -- the so-called "armchair rule".
Under this rule, the court sits in the place of the testator, assumes the same knowledge the testator had of the extent of his assets, the size and makeup of his family, and his relationship to its members, so far as these things can be ascertained from the evidence presented. The purpose of this exercise is to put the court in, as close as possible to, the same position of the testator when [making] his last will and testament.
See also Ross v. Canada Trust Company, supra, at paras. 36 – 43; Kaptyn v. Kaptyn, 2010 ONSC 4293, at paras. 33 – 35.
25In applying the armchair rule, a review of the “surrounding circumstances” requires the court to consider admissible evidence of those circumstance. In Kaptyn v. Kaptyn, supra, Brown J. (as he then was), summarized the law on this point as follows (at paras. 35 – 37, citations omitted):
Direct evidence of a testator's intention generally is considered inadmissible in the exercise of interpreting a will, whereas as "indirect extrinsic evidence" may be used by a court where the function of such evidence is to explain what the testator wrote, but not what he intended to write.
The rationale for this principle of admissibility rests in preserving the role of the written will as the primary evidence of the testator's intention and avoiding displacing the written will with an "oral will" gleaned from evidence of the testator's declarations of intent. An exception exists to the inadmissibility of direct evidence of intent in the case of an equivocation where the words of the will describe two or more persons or things equally well -- declarations of testamentary intention can be used to establish which of the persons or things was intended by the testator.
Inadmissible direct evidence has included (i) handwritten notes of the deceased directly stating her intentions regarding the disposition of property; (ii) statements made by the deceased to another about his intention; and (iii) the instructions the testator gave to her solicitor and the advice she received on the legal effect of the document under interpretation.
Admissible indirect evidence of surrounding circumstances includes such matters as (a) the character and occupation of the testator; (b) the amount, extent and condition of his property; (c) the number, identity and general relationship to the testator of the immediate family and other relatives; (d) the persons who comprised his circle of friends; and (e) any natural objects of his grant. Cases have also treated as admissible words spoken and written by the testator which have an independent significance to render intelligible something in the will that would otherwise be unintelligible.
26Where the circumstances surrounding the making of the will indicate that the will contains an error or omission, or where the text of the will makes it plain that the intentions of the testator have been misunderstood, or have not been acted upon, the court may “rectify” the will. Here, the focus is on the errors made by the drafter of the will. Accordingly, on rectification applications, evidence from the solicitor who drafted the will is admissible, indeed expected, while evidence of other third parties who have an interest is less likely to be admitted or relied upon (Re Robinson, 2010 ONSC 3484, paras. 24 – 26; aff’d Rondel v. Robinson Estate, 2011 ONCA 493, see paras. 24, 27. See also Spence v. BMO Trust Company, 2016 ONCA 196, at paras. 90 – 93).
Discussion
Introduction
27I start my analysis with a reading of the final will. In this case, abiding by the direction in Barsoski Estate, supra, that the will be read as a whole is straightforward because the final will is short – just 3 pages in length. After it names Mr. Nassif’s chosen executor and alternates, the final will directs that debts, expenses, taxes and claims be paid or resolved, before turning to the paragraphs quoted at paragraph 7 of these reasons. The next paragraph then provides that any benefit conferred by it shall not be considered a part of net family property. This is followed by the signature page. It is fair to conclude, then, that for present purposes, the only provisions of the final will which are significant are those portions of it quoted above.
28None of the parties disputes that the language of paragraph III (d) of the final will confers upon Ms. Nassif a life state in the house. There is also no dispute that the final will provides that the life estate would come to an end upon Ms. Nassif’s death, or when she no longer desired to use the house. This, however, is where the interpretative agreement ends.
29In the sentence which follows the sentence in which the life estate is described, the final will turns to the question of when the house will be transferred to Mr. Messieh. It describes two circumstances as follows:
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.
30According to the final will, then, if Ms. Nassif had predeceased her brother, Mr. Nassif, the life estate would never have come into being and, according to this direction, the house would have been transferred to Mr. Messieh. However, since Ms. Nassif survived her brother, the house could be transferred to Mr. Messieh only when Ms. Nassif “should … no longer desire” to use it.
31As noted earlier, Bishop Moussa argues that there is no evidence that Ms. Nassif no longer desired to live in the house. She simply aged, became infirm, and did not return to the house after she was hospitalized in December of 2015. Accordingly, the house should not be transferred to Mr. Messieh and, instead, should be considered part of the “rest and residue” of the estate which ought to be transferred to Bishop Moussa.
32For the reasons which follow, I do not accept this argument. I do not agree that the final will is free of ambiguity because on its face it seems to me to lead to an absurd result that does not accord with Mr. Nassif’s intentions. I agree with Mr. Mansour’s alternative argument: that the final will should be rectified to eliminate the ambiguity and to give effect to Mr. Nassif’s intentions.
33I turn now to a consideration of the three arguments which assert – on different bases – that the final will is not ambiguous, and that Mr. Nassif’s intention is adequately captured in its wording.
Do the Dead No Longer Desire?
34When interpreting a will the words used are to be given their ordinary meaning unless they are legal terms of art, or are prescribed meanings by a statute (Kaptyn v. Kaptyn, supra, at para. 33). In this case, the key phrases are “during her lifetime;” “such shorter period as my sister desires;” “should my sister predecease me;” and “should my sister no longer desire to use the said property as her home.” Within these phrases, the key words are “lifetime” and “desire.” Neither of these words is a legal term, so I apply their common everyday meanings in this analysis. The first of them is straightforward and, in context, clearly conveys the idea that Ms. Nassif could enjoy the use of the house until she died if she so chose.
35“Desire” is also a common word. In this context, used as a verb, its meaning is best captured by these infinitives, close synonyms of “to desire”: to want, to wish for, to choose, to prefer. The act of desiring is an act of the operating human mind. From this Mr. Mansour reasons that when she died, and no longer had an operating mind, Ms. Nassif “no longer desired” to use the house as her home because she was incapable of desiring.
36Although it is superficially attractive, I do not accept this argument. First, Mr. Mansour’s observation – that the dead can no longer desire a thing – is no stronger a proposition than the proposition that the dead can no longer not desire that thing. More important than this philosophical issue, though, is that it is evident that the final will set up “death” and “desire” as different things, and that the latter term did not include or subsume the former.
37In this respect, I note that para. III (d) of the final will uses the word “desire” twice. In the first instance, it is used to describe the length of the life estate afforded to Ms. Nassif: “during her lifetime or for such shorter period as my said sister desires.” Here, the final will refers to a choice to be made by Ms. Nassif during her lifetime. That act or choice is clearly contrasted with, and separate from, her death (captured in the phrase “during her lifetime”). I agree with Bishop Moussa that “death” and “desire” are different things, and that they are referred to as different things in the final will. Reading this paragraph as a whole, then, I think it is clear that the phrase in which the second use of “desire” appears does not mean – or include – the death of Ms. Nassif. The final will is referring to two different things: her death, and her choice to live in the house or not. The dead do not make choices – either way.
During Her Lifetime, Did Ms. Nassif No Longer Desire to Use the House?
38A similar argument is made by Ms. Messieh. She says that the facts establish that Ms. Nassif became ill, required hospitalization and then long-term care in a nursing home, and that she never returned to the house. On this argument, Ms. Nassif no longer “desired” to live at the house because her medical needs could not be met there. Moreover, she was, quite simply, not using the house at all. This argument avoids the interpretive problem thrown up by the wording of the will because it does not depend on what should happen when Ms. Nassif died, it depends on her state of mind before she died.
39There is evidence from Ms. Riad and Ms. Messieh of Ms. Nassif’s failing health in her final years. It is clear that she deteriorated after December 2015, and, on the evidence of Ms. Messieh at least, Ms. Nassif was in a state of significant cognitive impairment from that time until her death. Mr. Riad exercised power of attorney over Ms. Messieh’s affairs, both financial and otherwise. There is no evidence before me about whether Ms. Nassif actually chose to be hospitalized, or if that decision was made by someone else, or that she chose to be transferred to long term care. There is no evidence before me about what Ms. Nassif actually wanted.
40I am inclined to the view that there are many residents of hospitals and long-term care homes who do not choose, want, desire, or prefer to be residents of those places. Moreover, at a certain point of cognitive decline, a person may be incapable of choosing one way or another. While there is some force to Ms. Messieh’s argument that the evidence permits the inference that Ms. Nassif no longer desired to use the house as of the date she moved into the long-term care home, I am simply unable to draw that inference on the evidence before me. In this respect, Ms. Messieh’s own evidence provides the strongest support for my conclusion. She deposed that Ms. Nassif suffered a serious stroke in 2015, the result of which was “significant cognitive impairment affecting her judgment and rendering her essentially unable to speak.” In addition, Ms. Nassif is said to have become “quite passive.” I add that Ms. Riad’s evidence suggests that both Ms. Nassif’s hospitalization and her move into long term care were matters of necessity, not desire or choice, and that Ms. Nassif always maintained the house as her home address, which was never transferred to – or used by – anyone else before she died.
41On these facts, and contrary to the argument of Ms. Messieh, I cannot conclude that Ms. Nassif no longer desired to use the house as of the date she moved into long-term care.
Bishop Moussa’s Interpretation Leads to an Absurdity
42Having rejected the arguments of Mr. Mansour and Ms. Messieh that the meaning of the final will is not ambiguous, I turn to Bishop Moussa’s different argument for the same proposition.
43First, though, I pause to refer to the judgment of Dunphy J. in Sabetti v. Jimenez, 2018 ONSC 3523, at para. 54. There, it was observed that the first task of the court is to consider the words of the will itself. Where, having done so, “two possible interpretations present themselves one of which produces an absurdity and one of which conforms to the apparent intention of the maker of the document as suggested by a reading of the entire document in its context, the latter is to be preferred.”
44Bishop Moussa argues that as there is no evidence that Ms. Nassif no longer desired to live in the house, it should be included in the “rest and residue” of Mr. Nassif’s estate which the final will directs is to be transferred to Bishop Moussa. In my view, this interpretation of the will “produces an absurdity” and does not accord with Mr. Nassif’s true intentions, which I derive from “all the surrounding circumstances,” at the time the will was made.
45I start with the implications of Bishop Moussa’s interpretation. His position reduces to the following: that Mr. Nassif intended – and that the final will provides – that his brother, Mr. Messieh, would have the house transferred to him if his sister, Ms. Nassif, predeceased Mr. Nassif or, having survived Mr. Nassif, no longer desired to use it, but not if she survived Mr. Nassif but predeceased Mr. Messieh. Put another way, Bishop Moussa submits that the final will provides that he should get the house if Ms. Nassif died after Mr. Nassif, even though her other brother, Mr. Messieh, survived her, but that he should not get the house if Ms. Nassif stopped desiring the use of it while her brother Mr. Messieh remained alive.
46It strikes me that this interpretation provides for differing dispositions of the house based on little more than happenstance. If this was in fact the intention of Mr. Nassif, it seems an intention based on caprice rather than reason – which leads me to conclude that it was not his intention. Why would Mr. Nassif want his brother to have ownership of the house if his sister did not want to use it, but not if she died and could no longer use it? Why would Mr. Nassif want the needy Coptic Christians of Egypt to have the benefit of the house if Ms. Nassif died, but not if she no longer wanted to use it? It seems to me that it is very unlikely that these strange dichotomies were intended by Mr. Nassif and that this reading of the final will leads to an absurdity. A reading of the final will which is not absurd is that it simply contains an obvious mistake in drafting which, had it not been made, would have made it plain that the house was to be transferred to Mr. Messieh when his and Mr. Nassif’s sister was no longer using it, either because she did not want to use it or because she had died.
Applying the “Armchair Rule”
47The evidence of the circumstances surrounding Mr. Nassif at the time of the execution of the final will supports the conclusion I have stated at the close of the previous paragraph. Here I invoke the armchair rule to find Mr. Nassif’s intentions and, in doing so, I consider the facts as they were known to Mr. Nassif in April 2011 when the final will was executed (Dice v. Dice, supra, at para. 38).
48The evidence establishes the Mr. Nassif, Ms. Nassif and Mr. Messieh were siblings, each of whom immigrated to Canada from Egypt. Ms. Nassif never married and never had children. At no time did she do paid work in Canada. She was, at all times, supported by her brothers (including another brother, Morad Nassif), who were financially secure in their new lives in Canada. Ms. Nassif moved into the house with her brother, Mr. Nassif (who also never married or had children) to care for him when he became frail. In other words, the house became Ms. Nassif’s home. The evidence supports the conclusion that at about this time Mr. Nassif changed his will to provide for his sister’s accommodation after his death, as he and his brothers had throughout her life in Canada. In addition, she was having difficulty climbing stairs, and the house, a bungalow and free of stairs, suited her needs. As counsel for Ms. Messieh submitted in argument, this was not a complex set of changes to Mr. Nassif testamentary intentions, it was a simple instruction to Mr. Levesque: Mr. Nassif did not want his sister to have to move after he died – otherwise, everything remained the same.
49Importantly, the two preceding versions of Mr. Nassif’s testamentary intentions, the 2008 will and the 2009 will, both provided that the house should be inherited by Mr. Messieh and that the residue of the estate should be transferred to Bishop Moussa. In the 2008 will, Ms. Nassif was left a property at 92 Mansion Street, in Kitchener, which is another home owned by Mr. Nassif in which Ms. Nassif had lived at one point. In the 2009 will, the reference to 92 Mansion Street has been deleted, and nothing is left to Ms. Nassif – although she is named as the executor of Mr. Nassif’s estate.
50In these circumstances, it makes perfect sense that Mr. Nassif would amend his will to provide for housing for his sister, something omitted from the 2009 will, and that otherwise his long-held intention that Mr. Messieh should receive the house remained in place.
51Nothing in the surrounding circumstances suggests that Mr. Nassif intended that the house should be transferred to Mr. Messieh only if Ms. Nassif predeceased Mr. Nassif or if she no longer desired to use the house but not if Ms. Nassif survived Mr. Nassif but predeceased Mr. Messieh. Such an intention, completely unexplained by the circumstances or by any of the evidence, makes no sense.
52To be sure, each of Mr. Nassif’s wills expresses an intention to leave the residue of his estate to Bishop Moussa and, given the absence of evidence before me of any other remaining assets of Mr. Nassif’s estate, the result of this matter may be that Bishop Moussa will get nothing from Mr. Nassif’s estate. However, the evidence does support the conclusion that, at the time of the execution of the final will, which is the relevant moment in time, Mr. Nassif did have assets other than the house which could have formed the “rest and residue” of his estate and could have been provided to the needy Coptic Christians of Egypt.
53This leads me to the evidence of Mr. Levesque. He has submitted an affidavit which asserts that the final will does not accurately reflect Mr. Nassif’s intentions. In support of this assertion, he points to his own notes, quoted above at paragraph 9 of these reasons. As I have already said, those notes are contradictory on their face, but Mr. Levesque said on cross-examination that he believed that the final entry of the notes was the operative entry, and that it provides that a life estate in the house should be afforded to Ms. Nassif (“Life estate to Shoukry Yvonne,”) at the end of which the house should be transferred to Mr. Messieh (“house then to Shoukry”). Importantly, in my view, the notes treat the house separately from the property at 92 Mansion Street and from “the rest of my Estate” both of which are to be transferred to Bishop Moussa. In addition, nothing in the notes suggests that Bishop Moussa should have the house while Mr. Messieh remained living.
54I add this observation in favour of the view that the last entry of the notes is the operative one, and that the note appearing to indicate that a life estate in the house was to be provided to Mr. Messieh would have made little sense. In 1999, Mr. Messieh and his wife moved from eastern Canada to Ancaster in the City of Hamilton so that they could live near their adult daughter. At the times that Mr. Nassif was executing his various wills, including the final will, the Messiehs were free of financial worry and living in their own residence in Ancaster. Their two sons live in the United States. In these circumstances, a life estate in a house in Kitchener would have been of little use to Mr. Messieh. A life estate in that same house for Ms. Nassif, however, would have been of enormous value to her.
55Mr. Levesque points out that the final will, as drafted, does not provide instructions for what should happen if Ms. Nassif died while still living (or desiring to live) in the house – the circumstance which eventually came to pass. He says that neither he nor Mr. Nassif noticed this oversight, and that the will should be rectified now to ensure that Mr. Nassif’s intentions are respected. Those intentions, according to Mr. Levesque, were that Ms. Nassif should enjoy a life estate in the house and that ownership of the house should transfer to Mr. Messieh either when Ms. Nassif no longer wanted to use it or if Ms. Nassif predeceased Mr. Messieh. This is what he understood, and he so advised Mr. Mansour when he took over as executor of Mr. Nassif’s estate.
56Counsel for Bishop Moussa emphasizes that, on cross-examination, Mr. Levesque claimed to have a very limited memory of the relevant events, that Mr. Levesque testified that he had no reason to believe that the final will did not accurately reflect Mr. Nassif’s intentions, and that his conduct and that of Mr. Mansour was suspicious.
57It is true that Mr. Levesque’s ability to recall was limited, but this is no doubt the by-product of the fact that he was being cross-examined in April of 2021 about a short meeting he had attended in January of 2011. He reasonably relied on his notes in largest measure in both his affidavit and his cross-examination. As for his evidence that he had no reason to believe that the final will did not reflect the intention of Mr. Nassif, I agree with counsel for Mr. Mansour who argued that counsel for Bishop Moussa places too great an emphasis on this single answer given in the cross-examination. A reading of the whole of Mr. Levesque’s affidavit and transcript supports the conclusion that Mr. Levesque thought that the final will contained a drafting error. Moreover, the other surrounding circumstances suggest that there was a drafting error irrespective of whether Mr. Levesque recognizes it.
58I add that it is true that the final will does appear to express Mr. Nassif’s intention as far as its language goes. To this extent, Mr. Levesque’s answer is correct. The problem is that the language of the final will does not go far enough. It is what is omitted from the final will that causes the problem, and that omission means that the will does not completely reflect Mr. Nassif’s intention.
59As for the alleged suspicious conduct of Mr. Levesque and Mr. Mansour, I make no such finding on the record before me. The evidence is equally consistent with Mr. Levesque and Mr. Mansour behaving properly and, in any case, for the reasons I have given, in my view the final will contains a drafting error irrespective of whether they have behaved improperly. I will say nothing more on this topic in the event that it is relevant to issues, if any, that remain unresolved on Bishop Moussa’s application after these reasons have been delivered.
Rectification
60For all these reasons, I am of the view that the final will includes a drafting error such that Mr. Nassif’s intentions are not accurately reflected in it. I agree with the submission made on behalf of Mr. Mansour that the will should be rectified as he proposed in his notice of application.
Conclusion and Costs
61Accordingly, Bishop Moussa’s application, insofar as it seeks interpretation of the will, is dismissed. Mr. Mansour’s application for rectification is granted and in that matter I make the following order:
The last will and testament of Sidky Nassif, dated April 6, 2011, at the City of Kitchener, Ontario, is rectified such that paragraph III (d) is deleted and is replaced with the following:
(d) To hold the property that I use as my principal residence, and municipally known as 261 Bedford Road, in the City of Kitchener, at the time of my death together with all lands and buildings appurtenant thereto 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, or upon the death of YVONNE NASSIF, then my Trustee shall transfer the said property to my brother, SHOUKRY MESSIEH, if he survives me.
62In the event, that the parties cannot agree on costs, counsel for Mr. Mansour (on both applications) and Ms. Messieh may each make brief written submissions respecting costs to be served and filed within 10 days of the release of these reasons. Bishop Moussa may serve and file brief responding submissions on both applications within 7 days of the service of the submissions of Mr. Mansour and Ms. Messieh. Reply submissions, if any, may be served and filed within 3 days of the service of Bishop Moussa’s submissions.
63I add that the parties’ costs submissions should address the question of whether and, if so, to what extent, Mr. Nassif’s estate should pay for any costs awarded.
64It may be that the conclusion I have reached in these reasons is dispositive of all issues on the application brought by Bishop Moussa. In any case, however, I invite the parties to that application to seek directions from me respecting next steps.
I.R. Smith, J.
Released: March 19, 2024