Superior Court of Justice – Ontario

Court File No.: CV-23-00707327-00ES
Date: 2025-05-22

Between:
Moshe Gruber, in his capacity as the estate trustee for the estate of Yaacov Glickman, Applicant
and
The Hebrew University of Jerusalem, Respondent

Before: Papageorgiou, J.

Counsel:
Benjamin D. Arkin and Alexandra M. H. Cuperfain, for the Applicant
M. Jasmine Sweatman, for the Respondent

Heard: May 22, 2025

Endorsement

Overview

[1] This is an application for the interpretation of the Will of Yaacov Glickman (the “Deceased”) dated June 12, 2003.

[2] The Deceased died on June 10, 2022. He was predeceased by his wife Anne Glickman on December 4, 2021. He had no children.

[3] The Deceased’s estate has assets worth at least $1,240,000, but possibly as much as $2,600,000. This is because the Deceased is the beneficiary of a devise in the will of his late wife Anne, but that gift is the subject of a separate application for advice and directions relating to the administration of Anne's estate.

[4] The Applicant, a close friend of the Deceased, is named as Executor and Trustee of the Will. He obtained a Certificate of Appointment of Estate Trustee With a Will dated January 3, 2024.

[5] He brought this application because of concerns he had about whether the gift of the residue to the Hebrew University of Jerusalem fails for uncertainty and other concerns about how such gift was to be conveyed.

[6] The personal respondents are the heirs in intestacy of the Estate if the gift to Hebrew University fails. I am satisfied based on the affidavits of service that the personal respondents were served but have not responded. The one personal respondent lives in the United States and was served personally. The other two personal respondents live in Israel. The Applicant confirmed their addresses with them and then served them by registered mail in accordance with the Hague Convention and in line with Faieta J.'s decision in Kaplan v. Heber, 2024 ONSC 1445.

[7] Hebrew University has responded to the application. It takes the position that it is willing to accept the gift and administer it in accordance with the guidelines laid out in the Will. It filed materials and appeared at the hearing.

Decision

[8] For the reasons that follow I declare that the gift of the residue to the Hebrew University is not void for uncertainty or for any other reasons.

[9] I Order that the Deceased’s Will shall be interpreted to require that the Estate Trustee distribute the residue of the Deceased’s Estate to the Hebrew University by way of endowment without a specific or formal structure.

Issue

[10] Whether and how any ambiguities in the manner in which the gift to the Hebrew University can be resolved to give proper effect to the gift intended by the Deceased?

Analysis

The Law

[11] The court will interpret a Will based on the following principles:

a. What was the testator's intention when he made the will?
b. How can the court give effect to the testator's intention based on the language used in the will and with regard to the entirety of the will?
c. The "arm-chair rule" – If the plain meaning of the words in the will do not enable an understanding of the testator's intention, what are the surrounding circumstances for the testator when the will was drafted? and
d. Under the "arm-chair rule", in light of all of the testator's knowledge of their assets, family structure, and familial relationships, what is the intention of the testator in making this will?: Dice v. Dice Estate, 2012 ONCA 468 at paras 36-38.

[12] Only if the court is unable to determine the testator's subjective intention using this approach will it resort to technical rules of construction: Dice at para 59.

[13] The court has recognized that the expression of a testator's intentions is not always perfect. When the will needs to be interpreted, it is no longer possible to ask the testator for their intentions. Therefore, while the court may choose not to consider surrounding circumstances to determine a testator's intention beyond the plain language of the will, the general approach in Canada is to take the surrounding circumstances into consideration, even when the will's language is not ambiguous: Robinson Estate v. Robinson, 2011 ONCA 493 at para 24; Dice at para 59.

The Gift to Hebrew University of Jerusalem

[14] The gift to Hebrew University is set out in clause 3(b)(iii):

"Upon the death of my wife, Anne Glickman, or in the event my wife predeceases me, to use the residue of my estate to establish an endowment at the Hebrew University of Jerusalem." [Emphasis added]

[15] The subsequent paragraph states:

"my entire estate shall be bequeathed to the Hebrew University of Jerusalem for the purpose of creating a foundation." [Emphasis added]

[16] The Will also includes ten paragraphs of “basic assumptions” for the “endowment” or “foundation”:

That my entire estate shall be bequeathed to the Hebrew University of Jerusalem for the purposes of creating a foundation in memory of my parents, Bella and Avraham Glickman (deceased). The proceeds resulting from the investment of this money (and whatever sums of the principal deem appropriate by the Trustee) that come under the jurisdiction of the Foundation shall be designated for the sole support of an academic project that shall be judged as instrumental in "educating Jews and Arabs to live in peaceful coexistence." The following are basic assumptions that must guide the allocation of funds for the purposes of this project:

1. That 'Jews' refers to the definition of such as accepted at the time any sum of money therewith is allocated for the purposes such as inherent in this project which would mean a person who is 'Jewish' and who resides in any part of the world
2. That 'Arabs' refers to the definition as such as accepted at the time any sum of money therewith is allocated for the purposes such as inherent in this project which would mean a person who is 'Arab' and who resides in any part of the world
3. That this work shall form a joint project to be performed by at least two individuals (principal investigators) one of whom shall be 'Jewish' while the other one shall be 'Arab'
4. That in the event that this project shall be performed by more than two individuals (principal investigators), the parity between 'Jews' and 'Arabs' who shall be selected for such a financial support shall always be kept intact (which would presuppose an even rather than an odd number of individuals who apply for financial support of same)
5. That the proposals submitted by individuals who wish to pursue such a project shall have to be judged adequate by accepted public and academic standards.
6. That a selection committee consisting for the purposes of determining the winners of such a competition for such purposes as stated above shall be constituted in accordance with academic and public standards deemed appropriate in the eyes of "reasonable individuals" if it were to be judged by a panel of individuals drawn randomly from the public at large
7. That such a committee shall be chaired by the designated 'Trustee' (or his/her designated representative) of this will who shall also exercise a complete veto power on each and any decision made by the committee and who shall determine the outcome of any and all of the committee's decision by casting his/her vote in case of a tie. The 'Trustee' (or his/her representative shall also serve as a bona fide member of the committee for any and all designated purposes.)
8. That these terms of the will shall continue unchanged even after the signing of a peace treaty between the State of Israel (or the aggregate of Jews living together under any jurisdiction such as an Israeli-Arab Federation or a 'Jewish-Arab Bi-national State' or any variation or permutation as may be the case)
9. That this will acknowledges that Bella and Avraham Glickman who had devoted most of their life and activities to the founding of the State of Israel are now being returned, as a second phase and in conjunction with their lifelong endeavours, to the forefront of their original action which was, and so will be for perpetuity, the provision of security and peace for their own people and equally so for others with whom they ultimately shared their values and sentiments in their day-to-day life.
10. That in creating this program there is no implicit, explicit or otherwise intent to contravene the Israeli law with regard to the definition of who is a 'Jew' or who is an 'Arab.' It is stipulated herewith that any and all contradictions shall be handled in good faith by the Trustee/Executive. The person designated as the 'Trustee and Executor' of this will is Mr. Moshe Gruber who resides, at the time this will was written at 286 Upper Highland Cres, in the City of Toronto at the Province of Ontario, Canada. This document is written by Yaacov Glickman on the 22nd day of May of the year 2003 on the writer's own volition and choice who was in a sound mind and body without interference or coercion by any outside individual or individuals whatsoever. Mr. Gruber has accepted my proposal to designate him as 'Trustee and Executor' for this will of his free choice and own volition further agreeing to execute this will at the time it becomes valid strictly on a voluntary basis and amicable understanding between him and the writer of this document.

[17] Hebrew University is prepared to accept a gift from the Deceased's Estate and apply the guidelines, and the assumptions attached. As explained in the affidavit of its representative Ram Semo:

24. I have reviewed the last Will and Testament of [the Deceased] dated June 12, 2003 ("Will"). I wish to advise the court that the "assumptions" or criteria set out in the Will, are criteria that can fit and do fit within current university protocol for endowments. The purpose of supporting projects aimed at "educating Jews and Arabs to live in a peaceful coexistence" is a purpose the Hebrew University has ongoing projects and future need. Although hopefully peace will come to the Middle East, even with peace the purpose set out is one that will remain viable. The Hebrew University will always have a role in education in the region and internationally and especially to encourage, maintain and support positive relations between Jews and Arabs.

25. The Hebrew University's robust infrastructure, long-standing institutional commitment, and current programs are aligned with [the Deceased’s] stipulations. We have the capacity, experience and ongoing programs to carry out [the Deceased’s] purposes. We will meaningfully be able to administer the funds received endowment in honor of [the Deceased] and his parents' meaningful values of peace for security and peace between Jews and Arabs.

The Concerns Raised in the Original Application

[18] As noted, the Applicant brought this application because he was concerned that the language of the bequest may be internally inconsistent, ambiguous and vague:

a. He was concerned as to whether there was any meaningful difference between "the residue of my estate" and "my entire estate."
b. He was concerned as to whether there is a meaningful difference between "establishing an endowment" and "bequeathing my entire estate to create a foundation".
c. He was concerned that the Deceased referred to the Applicant as a “Trustee”. It was unclear whether the Applicant was to act as a formal trustee administering the funds or in some other capacity for example as an academic advisor.
d. Finally, he was concerned there was no explanation of what happens if the “assumptions” set out above could not be met or whether they could be interpreted to be conditions.

The Deceased’s Intention

[19] The words of the Will clearly demonstrate the Deceased’s intention was to make a gift to the Hebrew University for the purpose of educating Jews and Arabs to live in peaceful coexistence.

[20] This is consistent with the plain and ordinary meaning of the Will and reading the Will as a whole. If required, it is also consistent with the surrounding circumstances. The Deceased attended Hebrew University for his undergraduate degree. The Deceased expressed to the Applicant his strong views on the subject of Jewish-Arab relations in Israel.

[21] Where the charitable object of the testator can be clearly ascertained, it must be carried out: John v. T. Eaton Co., [1973] 635 at p. 645. Through the application of tools such as the cy-près doctrine, the courts in many cases have gone to significant lengths to ensure that monies intended for charity go to charity: Hanson v. Torrence (1938), 4 D.L.R. 470. There is a general presumption that a testator did not intend to die intestate. If a will has two possible constructions, one of which would make an effective disposition of all or part of the estate, and the other which would result in intestacy, a court will prefer the former: Frolich Estate v. Edekind et al., 2012 ONSC 3775 at para 22. Accordingly, the courts will not favor an intestacy where it can be inferred that the testator intended to devote the failed gift to the charitable purpose or objects of the former institution.

The Difference Between “Residue” and “Bequest” of “Entire Estate”

[22] There is no meaningful difference between the use of the word “residue” and “bequeathing” the Deceased’s “entire estate”, in the context of this case, because there are no specific gifts in the Will. Therefore, regardless of whether this is a specific bequest or the residue, it would mean the Hebrew University would receive the Deceased’s entire net estate.

“Endowment” v. “Foundation”

[23] In Black's Law Dictionary, an endowment is defined as a "transfer, generally as a gift, of money or property to an institution for a particular purpose; [...] the act of establishing a fund, or permanent pecuniary provision, for the maintenance of a public institution, charity, college, etc." It defines a "foundation" as a fund established for charitable, educational, religious, research or other benevolent purposes. The Income Tax Act defines a charitable foundation as a "corporation or trust that is constituted and operated exclusively for charitable purposes."

[24] In this case, I agree that the Will provided an outright gift to the University rather than the establishment of a foundation that is a formal trust or nonprofit corporation.

[25] The language of the Will does not express an intention to create a foundation as a trust under the Income Tax Act. Likewise, the language does not express a direction to create a nonprofit corporation. Although the Will directs that a program be established in compliance with Israeli law, it does not address the legal requirements of creating a non-profit corporation.

[26] In order for there to be a trust the three certainties must be established including the certainty of intention, certainty of subject matter and certainty of object.

[27] The use of the word “assumptions” that are to “guide” the allocation of funds is precatory; that is, they express the Deceased’s wish as to how the funds will be used as opposed to an obligation.

[28] In Christian Brothers of Ireland in Canada, Justice Abella states that a "precatory gift" to charity is not to be interpreted as a charitable purpose trust but rather a bequest in which the donor merely imposes some moral obligation on the receiving charitable corporation to use the property in a certain way with words of expectation, desire, or purpose rather than mandatory language to create a legal obligation.

[29] The list of assumptions specifically sets out that there may be peace in the Middle East and that the terms of the Will remain unchanged even after the signing of a peace treaty. Therefore, there is recognition that there must be flexibility because of potential changes in the Middle East and the State of Israel.

[30] Therefore, there is no certainty of intention to create a trust.

[31] Further, the Deceased appeared to have prepared the Will himself. To the extent that the surrounding circumstances are relevant, the Deceased was an academic. He was not a lawyer, accountant, or financial professional who would have likely understood the technical or term of art usage of the words “foundation” or “endowment” in the Will. Rather, he used them in a colloquial fashion and interchangeably.

[32] As well, the Deceased attended the Hebrew University. It makes sense that the Deceased had an affinity for the organization and intended to entrust it with the management of the funds based upon the plain and ordinary meaning of the words, reading the Will as a whole and the surrounding circumstances.

[33] Given the fact that the Deceased used both words, and given his background, his use of the words "endowment" and "foundation" should be understood in their informal sense of being a fund administered by the Hebrew University rather than something that would have a specific legal structure. This is particularly so given the absence of any specific direction in the Will for a legal structure.

“Trustee” v. “Executor”

[34] The very essence of a trust is that there is a trustee who holds property in trust for another. If the Deceased had intended to create an endowment that was held in trust, with the Applicant as Trustee over it, then one would expect the Will would say that the Applicant is appointed trustee over the gift to Hebrew University, and that he will hold the gift and administer it, but this type of language is not present.

[35] This type of language is, however, present when the Deceased references the appointment of the Applicant as Trustee over his Estate. The Will speaks of “[giving]” his property to the Trustee to use in the exercise of his discretion to realize on the Estate, to sell any part and to pay out expenses, and initially to hold the residue for the benefit of his wife and encroach on it as necessary and then to distribute it. Indeed, there are many provisions that set out the Applicant’s powers and responsibilities as Trustee over the Estate that are simply not replicated at all with respect to the endowment or gift to Hebrew University.

[36] In fact, the wording is to the opposite to directing that the Applicant hold the funds because the words “bequeath” of the Deceased’s “entire estate” to Hebrew University are used.

[37] As well, the Applicant was appointed the Trustee and Executor of the Will. Then in the list of assumptions there is reference to the committee who selects proposals submitted by individuals which is to be chaired by the “designated Trustee”, without identifying any other individual. Thus, the purpose of the “Trustee” with reference to the endowment is set out to be academic rather than financial administration.

[38] The way that the Will is drafted supports the interpretation that what the Deceased has done is refer to the Applicant as Trustee in the list of assumptions with respect to the endowment, as descriptive or for identification purposes, because he is the “Trustee” of his Estate, not because he has established a formal trust over the endowment with the Applicant appointed as a trustee over it to hold and administer it.

[39] This is reinforced by the inclusion of the Applicant's ability to delegate to "his/her representative" as well as the Deceased’s particular background. If this had been a formal trust, then the Applicant would not be able to delegate to a representative. I note here that the Deceased was also familiar with the manner in which an alternate trustee would be appointed where he established a trust because his wife was appointed the Trustee over his Estate and the Applicant was an alternate Trustee.

Conditions?

[40] Although the Applicant raised the concern that there is no direction as to what will happen if “conditions” fail, I agree with the Hebrew University’s submission that the word “conditions” is not used in the Will.

[41] What the Will does is establish an outright gift accompanied by the precatory wishes as opposed to legally binding conditions. As noted, the Hebrew University has confirmed its ability to give effect to the Deceased’s precatory wishes.

Conclusions

[42] Although the Applicant initially perceived internal inconsistencies and ambiguities in the Will, these concerns are diminished by the Hebrew University's evidence that it can carry out the terms of the Deceased’s Will through the establishment of an endowment. According to the Hebrew University, the conditions in the Deceased’s Will align with the "Hebrew University's robust infrastructure, long-standing institutional commitment, and current programs." Additionally, it has the "capacity, experience and ongoing programs to carry out [the Deceased’s] purposes ... [and] meaningfully be able to administer the funds received endowment in honor of [the Deceased] and his parents' meaningful values of peace for security and peace between Jews and Arabs."

[43] The court can give effect to the Deceased’s intention by making an order that clarifies that the Applicant is to distribute the residue of the Estate to Hebrew University; and that the Hebrew University shall comply with the guidelines set out in the Will; and that the Applicant as "Trustee" is authorized to appoint a representative, including the Hebrew University itself, without restriction to the length of time or permanence of such appointment.

[44] Given that the respondents who would take under an intestacy have not responded and the Hebrew University’s position, Order to go as requested.

Papageorgiou, J.
Date: May 22, 2025