Mujanovic v. Bigovic, 2024 ONSC 1093

CITATION: Mujanovic v. Bigovic, 2024 ONSC 1093 COURT FILE NO.: CV-23-527-00ES DATE: 2024/02/21 SUPERIOR COURT OF JUSTICE-ONTARIO RE: LJILJANA MUJANOVIC in her capacity as Estate Trustee for the Estate of RADA PAROSKI, Applicant -and- DRAGAN BIGOVIC, MILUTIN DJURAKOV, and PALMIRA DJURAKOV, Respondents BEFORE: Gibson J. COUNSEL : Dawn Phillips-Brown, Counsel for the Applicant No one appearing for Respondents HEARD : November 1, 2023 ENDORSEMENT Overview [ 1 ] Rada Paroski (“the Deceased”) passed away on September 6, 2022, at the City of London, Ontario, testate.

The Deceased had no spouse, children, or dependants at the time of his death. [ 2 ] The Applicant, Liljana Mujanovic (“Lily”), is the only surviving sibling of the Deceased and is also the Applicant in this proceeding. Their sister, Marija, passed away before the Deceased and was also a named beneficiary in the Last Will and Testament of Rada Paroski, dated August 17, 2017 (“the Will”). All of the Applicant’s other siblings were deceased prior to the death of the Deceased. [ 3 ] This is an Application under Rules 14.05(3)(

a) and (

d) and Rule 74.04 of the Rules of Civil Procedure . The Applicant commenced this proceeding by Notice of Application issued April 20, 2023, seeking direction from the Court and specifically to seek the

interpretation of a clause in the Last Will of Rada Paroski. [ 4 ] The paragraph in the Will that requires

interpretation is as follows: 2. I DIRECT my Trustee to pay or to transfer TWENTY (20%) PERCENT of the entire remainder and residue of my estate to the following persons per capita : a. My brother-in-law, MILUTIN DJURAKOV, of the City of Kitchener, in the Province of Ontario, for her own use absolutely, b. My wife’s sister-in-law, PALMIRA DJURAKOV, of the City of Kitchener, in the Province of Ontario, for her own use absolutely, c. My sister, MARIJA BIGOVIC also known as KEKA BIGOVIC, of the City Vrbas in the Country of Serbia, for her own use absolutely,

d. My nephew, DRAGON BIGOVIC, of the City Vrbas in the Country of Serbia, and; e.

My sister, LJILJANA MUJANOVIC also known as LILY MUJANOVIC, for her own use absolutely. [ 5 ] The specific issue is that this paragraph does not make it clear what impact per capita has, in the circumstances, on the gift to Marija Bigovic (“Marija”) who is the only named beneficiary that predeceased the Deceased, leaving a son, Dragan Bigovic, also a beneficiary. [ 6 ] After the Deceased’s death a concern arose that it is not entirely clear if Marija’s share, referenced at paragraph 2 (c), goes to her descendant (Dragan Bigovic) or out on an intestacy to a variety of people, including one that cannot be located. [ 7 ] Apart from the Applicant and Marija, the Deceased had four other siblings who predeceased him: Velko Paroski, Marija Perovic, Dragica Stanacev and Ivan Paroski. [ 8 ] The Applicant, who has been appointed as Estate Trustee, seeks an Order to confirm the method of distribution for Marija’s share and to answer the questions necessary to confirm this, in order to move forward with the administration of the Estate. [ 9 ] Paragraph 2 of the Will refers to per capita , making it unclear to the Applicant how to distribute Marija’s gift at paragraph 2(c).

Per capita is defined in the Will as the antithesis of per stirpes . The question arises then, who is entitled to the 20% share of Marija due to the conflicting use of “ per stirpes ” and “ per capita ”, and the intention of the Testator. Issues [ 10 ] The issue before the Court is a determination of who is entitled to Marija’s share, and specifically requires answering the following questions: 1. Is paragraph 2 of the Will subject to the anti-lapse provision in the Succession Law Reform Act in light of the word “ per capita ”? 2. Is paragraph 2 of the Will a class gift? 3.

Does the gift at paragraph 2 (c), by virtue that Marija Bigovic predeceased the Deceased, go out on an intestacy in accordance with s.47 of the Succession Law Reform Act ? Analysis [ 11 ] When interpreting a Will, the Court must determine the intention of the testator when they made their Will. The Court must use common sense, giving the words their ordinary meaning in an attempt to achieve, from the wording of the Will itself, the result the testator intended.

Only when the testator’s intention cannot be perceived this way, should the Court then resort to rules of construction developed by the courts over time: Dobson Estate v. Dobson , [2000] O.J. No. 552 (ONSC) at paras. 8-9 . [ 12 ] In Dice v. Dice Estate , 2012 ONCA 468 , at para. 12 , the Court of Appeal for Ontario has defined these terms as: A per stirpes distribution means that each branch of the family is entitled to only one share of the gift to be distributed amongst the members of the branch.

Under a gift to issue alive at the testator’s death per stirpes , this would mean the children of a deceased child of the testator would share the deceased child’s share of the gift. This is in contrast to a per capita distribution under which each lineal descendant of the testator alive at the testator’s death would receive one share of the gift. [ 13 ] In the absence of a contrary intention in the Will, the Court may find the testator meant per stirpes instead of per capita , and the gift would not lapse in accordance with s. 31: Dewitt v. Taggart Estate, [2006] O.J.

No. 3209 (ONSC), at paras. 8-10 . [ 14 ] In the present case, however, there appears to be an opposite intention present in the Will of the Deceased. [ 15 ] Given the reference in the Will to per capita and it being the antithesis of per stirpes , it seems clear that the Will should not be interpreted so that Marija’s share goes out to her issue. While the Succession Law Reform Act includes anti-lapse provisions, it only applies if there is not a contrary intention. The emphasis on the use of “ per capita ” over “ per stirpes ” included in the defining

section at paragraph 2 in the Will outlining how it is to be used, indicates a contrary intention. [ 16 ] The type of gift that is being dealt with must then be ascertained. If a class gift, the deceased beneficiary’s share simply accrues to the surviving members of the class. If, on the other hand, the gift is considered a gift nominatum , the gift lapses. [ 17 ] If the gift is a class gift, then it would be distributed rateably to members in the class. However, the named individuals in the Will do not belong to a readily defined group. These gifts are still subject to a contrary intention. The gift in this instance cannot therefore be

considered a class gift. A lapsed residuary gift passes as if the testator has died intestate: s. 31 of the Succession Law Reform Act; Ksianzyna Estate v. Pastuszok , 2008 CarswellOnt 6793 (ONSC) at para. 14 . [ 18 ] On an intestacy, the Deceased’s beneficiaries would be the siblings of the Deceased and their issues. All of the Deceased’s siblings are deceased, other than Lily. As a result, the distribution would go rateably to them, including Lily: s. 47(4) of the Succession Law Reform Act. Order [ 19 ] Accordingly, I would answer the questions posed by the Applicant as follows: 1.

Is paragraph 2 of the Last Will and Testament of Rada Paroski, dated August 17, 2017, subject to the anti-lapse provision in the Succession Law Reform Act in light of the word “ per capita ”? Answer: No. 2. Is paragraph 2 of the Will a class gift? Answer: No. 3. Does the gift at paragraph 2 (c), by virtue that Marija Bigovic predeceased the Deceased, go out on an intestacy in accordance with s.47 of the Succession Law Reform Act ?

Answer: Yes. [ 20 ] Any gift under the Will to be paid to a beneficiary that cannot be located shall be paid to the Accountant of the Superior Court of Justice to be held for the benefit of that individual and shall be accompanied by an Affidavit naming that individual and setting out any and all known last contact information or methods of communication with that individual. [ 21 ] The Applicant shall be entitled to be paid her full indemnity costs of this Application from the assets of the Estate of Rada Paroski. __ ________________________________ M. Gibson, J. Date: February 21, 2024