The Court of Appeal recently upheld the decision in Mansour v. Girgis, 2024 ONSC 1611, where the applications judge was tasked with interpreting or rectifying a will to give effect to the Deceased’s intentions.

The Deceased died in 2012. In his will, the “rest and residue” of his Estate was left to Bishop Moussa of the Coptic Church for the benefit of Coptic Christians in Egypt.

The issue before Smith J. was whether the “rest and residue” of the Estate included the Deceased’s house, or whether it was gifted to the Deceased’s sister Yvonne and then to his brother Shoukry under the Will.

The Deceased had three wills in his lifetime. The first two left the house to his brother Shoukry and the residue to Bishop Moussa. The third and final Will provided as follows with respect to the house:

“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.”

The key question raised by this final Will was what should be done with the house if Yvonne predeceased Shoukry without signaling that she no longer desired to live in it.

Bishop Moussa argued that because Yvonne neither predeceased the Deceased, nor was there any evidence that she no longer desired to live in the house (as she had moved to a long-term care home in 2016), the house fell into the residue of the Estate.

The Deceased’s Estate argued that the Will instructs that upon Yvonne’s death, the house is transferred to Shoukry as she clearly no longer desired to use the property in death.

Shoukry’s Estate argued that once Yvonne moved into a long-term care home, she no longer “desired” to use it.

The drafting solicitor’s position was that the Will was ambiguous and ought to be corrected to give effect to the Deceased’s intentions, which was that Shoukry should inherit the house either when Yvonne no longer desired it or when she died.

After reviewing the final will, Smith J. went into an interesting and at times philosophical analysis of whether the dead no longer desire, as argued by the Deceased’s Estate. He concluded that while it is a superficially attractive argument, he would not accept it, as on his interpretation, the Will had set up “death” and “desire” as different things and the use of the word “desire” did not include Yvonne’s death.

The court also rejected Shoukry’s Estate’s and Bishop Moussa’s respective arguments, as the former was not supported by the evidence and the latter would create an absurdity.

Smith J. instead applied the “armchair rule” and considered the surrounding circumstances known to the Deceased at the time the Will was drafted to ascertain his intentions. He noted that the preceding two wills had left the house to Shoukry, and the evidence supported the conclusion that the final Will was drafted to take care of Yvonne after the Deceased’s death, as she had moved in with him to care for him before he died. The drafting solicitor’s evidence that the final Will does not accurately reflect the Deceased’s intentions also weighed in favour of rectification.

As a result, the court rectified the Will to give Yvonne a life interest in the house and, on her death or when she no longer desired the house, to transfer the house to Shoukry.

Earlier this month, the Court of Appeal upheld Smith J.’s decision, though noted that it would not have followed the “analytical path” taken with respect to a person’s ability to desire in death. Nevertheless, the Court of Appeal saw no basis to interfere with his conclusion, which gave effect to the plain intention of the Deceased.

Thanks for reading!