In Mansour v. Girgis, the court was asked to interpret the Deceased’s will and if the will was found to be ambiguous, to rectify a drafting error.

The Deceased died in 2012. He never married and never had children. At the time of his death,  he was survived by two siblings who he made provisions for in his testamentary documents.  He also left the residue of his estate to Bishop Moussa for the benefit of Coptic Christians in Egypt.

At issue was whether the Deceased’s house (the “House”) was gifted to his sibling ( a life interest to his sister Yvonne and than gifted to his brother, Shoukry) or if the House fell into the estate’s residue (which would go to Bishop Moussa).

There were two applications before the court. Bishop Moussa brought an interpretation application.  The Deceased’s estate trustee brought a rectification application, if rectification of the will was necessary to give effect to the Deceased’s intentions.

The Will

The Deceased made at least three wills. In his 2008 Will, he leaves the House to Shoukry and the residue of his estate to Bishop Moussa. In his 2009 Will, he leaves the House to Shoukry and the residue of his estate to Bishop Moussa.  In his 2011 Will (the “Will), the House is disposed in paragraph III(d) as follows “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 following paragraph gifts the residue of his estate to Bishop Moussa.

The Parties’ Positions

The Deceased died in 2012. Yvonne was living with him at the time the Will was made and continued to live in the House until 2016 when she moved into a long-term care facility.  She died in 2017. The House was sold in 2018. Shoukry died in 2019.

Bishop Moussa’s position was that Yvonne was to enjoy the House during her lifetime or for a shorter period as she desired and if she no longer desired to live in the House, it would be transferred to Shoukry. However, as Yvonne did not predecease the Deceased and there was no evidence that she did not desire to live in the House (her admission into a long-term care home was a necessity, not a desire), the House becomes part of the residue.

The Deceased’s estate’s position was that the Will was clear. Yvonne only received a life interest. The House should have been transferred to Shoukry when Yvonne died.

Shoukry’s estate’s position was that the House should have been transferred to Shoukry when Yvonne moved into a long term care facility. At the point of her admission, she no longer desired to live in the House. In any event, the Will is clear that Yvonne only received a life interest in the House.

The drafting solicitor’s position was that the Will was ambiguous and contained a drafting error that required the court’s rectification. The Deceased’s intention was for Yvonne to have a life interest.

Rectification

In a thoughtful analysis of the law and  the evidence (including the evidence of the drafting solicitor), the court applied the armchair rule and found that the Will contained an omission and the court could rectify the Will to reflect the Deceased’s true intentions.

The court found that in his previous wills, the Deceased gifted the House to his brother, he never gifted the House to Bishop Moussa, and when Yvonne came to live with him, the change to the Will was to provide his sister with a place to live and not to transfer the House to her. There was no evidence to indicate that the Deceased intended for the House to fall into the estate’s residue.

The Court granted rectification. The previous paragraph III (d) of the Will was deleted and replaced with a new paragraph that made it clear that Yvonne received a life interest and upon her death, the House would be transferred to Shoukry.

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