Ali Estate (Re)

Ali Estate (Re)

The court has no jurisdiction in this case to add the words sought to the will at the probate stage; on the evidence the solicitor deliberately used the phrase 'all my interest in the Company' and the testator knew and approved the will's language, therefore rectification is denied and interpretation is to be determined only after the grant of probate with evidence admissible for construction.

Citation
2011 BCSC 537
Parties
Petitioner; Co Executor; Brother of Testator: Maksood Ali; Respondent; Co Executor; Daughter and Residuary Beneficiary: Razaanah Rabah Ali; Respondent; Claimant Under Wills Variation Act: Christina Neelu Hussain; Respondent; Claimant Under Wills Variation Act: Sophia Dibah Manikiam; Deceased / Testator: Estate of Muntaz Mohamed Ali
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
18 January 2011
Procedural Posture
Probate (rectification) and Construction (interpretation) / Application Heard Pre Probate; Rectification Dismissed; Construction Deferred Until After Grant of Probate
Outcome
Application to rectify the will dismissed; construction application deferred until after grant of probate; costs awarded as directed
Legal Topics
Rectification of Wills, Construction of Wills, Admissibility of Extrinsic Evidence, Costs
Source Language
English
Wills and Estates Probate Trusts Equity Rectification of Wills Construction of Wills Admissibility of Extrinsic Evidence Costs

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Parties

Maksood Ali

Petitioner; Co Executor; Brother of Testator

Razaanah Rabah Ali

Respondent; Co Executor; Daughter and Residuary Beneficiary

Christina Neelu Hussain

Respondent; Claimant Under Wills Variation Act

Sophia Dibah Manikiam

Respondent; Claimant Under Wills Variation Act

Estate of Muntaz Mohamed Ali

Deceased / Testator

Procedural Posture

Probate (rectification) and Construction (interpretation) / Application Heard Pre Probate; Rectification Dismissed; Construction Deferred Until After Grant of Probate

Legal Issues

  1. 1 Whether the court exercising probate jurisdiction may add words to a will (rectification)
  2. 2 Whether shareholder loans and promissory note are included in the bequest of the testator's interest in the company
  3. 3 Whether the court should interpret the will prior to grant of probate

Ratio Decidendi

The court has no jurisdiction in this case to add the words sought to the will at the probate stage; on the evidence the solicitor deliberately used the phrase 'all my interest in the Company' and the testator knew and approved the will's language, therefore rectification is denied and interpretation is to be determined only after the grant of probate with evidence admissible for construction.

Court Disposition

Application to rectify the will dismissed; construction application deferred until after grant of probate; costs awarded as directed

Orders

  • Application to rectify the Will dismissed.
  • Petitioner to obtain grant of probate and then reset the hearing of the construction application before the same judge with affidavits limited to evidence admissible on a construction application.