|
| CANADA |
| PROVINCE OF QUEBEC |
| DISTRICT OF | MONTREAL |
| No: | 500-05-057466-003 |
| DATE: | March 6, 2002 |
| ______________________________________________________________________ |
| IN THE PRESENCE OF: | THE HONOURABLE | ROBERT MONGEON, J.S.C. |
| ______________________________________________________________________ |
|
ABRAHAM MARASHLIAN JOHN MARASHLIAN SIMA MARASHLIAN PORTER VIOLETTE MARASHLIAN FARAH |
| Plaintiffs |
| Vs. |
|
DIKRANOUHI MARASHLIAN OLGA MARASHLIAN MOURAD MARASHLIAN |
| Defendants |
| ______________________________________________________________________ |
| R E C T I F I E D J U D G M E N T |
| ______________________________________________________________________ |
INTRODUCTION
1. The Plaintiffs have instituted an action against the Defendants seeking the enforcement of a verbal agreement pursuant to which the estate of their late mother would be partitioned equally among the seven siblings, all parties to this instance, the whole, notwithstanding the terms and conditions of a will, discovered several years after their mother's death. The Defendants are the beneficiaries of the quasi-totality of the estate of their mother in their capacity as testamentary legatees by general title under the said will.
2. The Plaintiffs claim that, after the death of their mother, a verbal understanding was reached between all seven siblings whereby certain newly discovered assets would be partitioned equally. Unknown to them at the time was the fact that their mother had left a notarial will. Although this understanding was concluded initially without the parties having knowledge of the will of their mother, the Plaintiffs allege that this understanding was reiterated and confirmed after the discovery of the will. The Plaintiffs also seek conclusions condemning some of the Defendants to an accounting as well as a declaration establishing that the estate in question be partitioned into seven shares.
3. The Defendants contest the existence and validity of any verbal agreement changing the testamentary dispositions of their late mother's estate. They ask the Court to declare that they are entitled to the residue of the estate (net of particular legacies and expenses) to the extent of 1/3 each.
THE FACTS
4. Seven brothers and sisters of the Marashlian family left their home town of Jaffa and came to Canada at the end of the 1960's.
5. In 1968 Dikranouhi ("Dicky")(1) and her brother Abraham were the first to leave Israel. They were followed by John and Mourad in June 1970. In 1971 Olga came with their mother Serpouhi Mirzayan Marsahalian ("Mrs Marashlian"). Finally, Violette and eventually Sima arrived, the latter residing firstly in Toronto before arriving to Montreal.
6. The Marashlian family lived close together, supporting each other. Their family life and relations pivoted around Dicky who also looked after their mother, with the occasional help of her other brothers and sisters.
7. In 1983, Mrs Marashlian decided to make a will. She apparently decided to do this on her own and chose not to involve any of her children in the process. She took advice from one of her long-time friends, Mary Gibara, who had also moved to Montreal from Jaffa. Mary Gibara found a notary for Mrs Marashalian, Mtre Nicola Corbo. She also accompanied Mrs Marashlian to Mtre Corbo's office on October 21, 1983. At the time of signature of the will, Mrs Marashlian was 73 years old and in good health. She is also described by all witnesses as a well educated person, having exercised the profession of midwife all her life (while residing in Israel). Because of her profession, she was highly respected in her community.
8. The will (P-1) is a very simple document and is very clear. Its devolutive dispositions are as follows:
ARTICLE SECOND:
I give as particular legacy, FIVE HUNDRED DOLLARS (500.00$) each, net of all expenses whatsoever, to my children ABRAHAM MARASHLIAN, JOHNNY MARASHLIAN, Dame VIOLETTE MARASHLIAN, widow of the Late Christo Farah and SIMA MARASHLIAN, wife of Mr. David Porter, with representation or accruance.
I give the rest residue, share and share alike, to my children, DIKRANOUHI (or Dicky) MARASHLIAN, OLGA MARASHLIAN and MOURAD MARASHLIAN, with representation or accruance.
Should my son ABRAHAM, predecease me, I wish that the share of his children be administered by my testamentary executors until they reach the age of eighteen (18) years.
ARTICLE THIRD:
I nominate and appoint my children DIKRANOUHI (or Dicky) and MOURAD MARASHLIAN, my testamentary executors of this my Last Will and Testament, hereby extending their authority as such beyond the year and day described by law.
In case of predecease, refusal or incapacity of either one of the above two to act, the replacing party shall be my daughter, OLGA MARASHLIAN.
9. According to Mary Gibara, Mrs Marashlian had decided upon this partition because, at the time of making her will, Abraham, John, Violette and Sima were married and already established, while Dicky, Olga and Mourad were still single. Mrs Marashlian's will remained unchanged until her death on November 24, 1992 (P-2).
10. Dicky took care of her mother's funeral and personal affairs. At the time of her death (and, for that matter, at the time of drafting and executing her will) Mrs Marashlian was apparently unaware of the fact that she may be the owner of valuable real estate property in the Middle East. Her children, were also unaware of this situation. In point of fact, the only known assets of Mrs Marashlian at the time of her death were her personal belongings, including some jewellery, and a bank account containing an amount of approximately seven thousand Canadian dollars.
11. The evidence shows that, in 1992, the Marashlian children were unaware of the existence of their mother's notarial will. As stated above, none of the children believed or could suspect that Mrs Marashlian had left any substantial assets at the time of her death. Dicky kept most of her mother's personal belongings mainly because her mother had lived in her home from 1971 until a few months before her death when she was admitted in a "Centre d'accueil". Whatever cash available in Mrs Marashlian's bank account was used to cover the funeral expenses. Any additional funds, if any, were kept by Dicky. Her brothers and sisters were not concerned about the situation at the time. I say "not concerned" not because they did not care about their mother but because whatever money may have been left over, the amount was apparently not important enough to cause any concern.
12. So, in the minds of the children Mrs Marashlian passed away apparently without leaving a will. It was normal for all of the children to assume that they all shared equally into their mother's estate and be entitled to one seventh of same. On the other hand, the estate being apparently devoid of any substantial assets, as everybody believed to be the case, nobody really asked any questions. After the payment of the funeral expenses, there was nothing to distribute.
13. In 1995, Dicky travelled to the Middle East to renew contact with some members of her extended family still living in Israel and or Palestine. She apparently learned, through one of her cousins, Farid L. Copti, that one of her uncles (Mrs Marashlian's brother) had left some undivided interests in real estate properties to his sister. These properties were situated in Jericho, Palestine and in Jerusalem, Israel. The market value of these properties was apparently substantial but not easily marketable. She met with a local lawyer whom she knew or was known to her family, one Nadeen F. Shehadeh. Mr. Shehadeh looked into the matter and reported to her as follows on 14th September, 1995 (P-3(2) ):
14 September, 1995
I reviewed the material you sent me without even a note from you.
I received the Title Deeds and compared them with the registers at the Land Registry Department. The following was revealed:
- Parcel 10 of block 33016.
- The area 5630 square meters.
- The present owners are:
- Sirbohir Bulos Marizian.
- Dorttien Bulos Marizian.
- Ahmad Mosallam.
- Mousa Shaker Barahmeh.
- Basima Shaker Barahmeh.
- Mostafa Khalil Jaghab.
- It appears that the share of your Uncle John Marizian has already been transferred to the name of your mother and aunt which is 1621 each in this piece.
2. Parcel 32 of block 33016
3. Parcel 21 of block 6
- Area of this piece is 3634 meters.
- It appears that the Late John Marizian is still registered as a part owner, and his share has not been transferred to his heirs.
- His share is 2058 square meters.
Now please read carefully the following remarks:
- Area of this piece is 40189 square meters.
- It appears that the Late John Marizian is still registered as a part owner, and his share has not been transferred to his heirs.
- His share is 5 shares out of 40 shares (approximately, 5000 square meters).
- With respect to the first parcel mentioned above, the name of your mother already appears as an owner.
After obtaining the Succession Order, I shall apply to the Jericho Land Registry Department to change the name of your mother and have her share registered in the names of her heirs. The costs of this transaction is 2% of the assist value of the land.
- With respect to the second and third parcels. These two parcels are still registered in part in the name of John Marizian.
Now please send the following:
Please note that this document must be signed before a notary, legalized by him, and then certified by Apostille.
- The document requested in para. 1 above which need not be legalized at all. (Unless your mother died at this end, then you can forget the document).
- A cheque for $5,000.
I shall commence on doing the work as soon as I receive the required authorisation and the cheque.
With My Warmest Personal Regards.
(emphasis added)
14. It should be noted that Mr. Sehadeh does not ask for a will but a certificate from a priest, in order to establish the identity and filiation of the heirs.
15. Sometime after her return to Montreal, Dicky convened a family reunion to inform her siblings of the new situation and to inform them that, in all likelihood, they were to become the beneficiaries of valuable real property interests in Palestine and Israel. At that time, the existence of Mrs Marashlian's notarial will is still unknown to all. Consequently, the children could reasonably continue to believe that they would all share equally into the estate of their late mother to the extent of one seventh each. This is the normal rule of devolution applicable to intestate successions legally opened in Quebec at the time of Mrs Marashlian's death (1992)(3) .
16. It is also obvious from the underlined paragraphs of Mr. Shehadeh's letter that he, like Dicky, is unaware of the existence of a will.
17. This family reunion takes place at Sima's residence at Île-Perrot around the month of August 1996.
18. At this reunion, Dicky informs her siblings of this new situation and explains that some expenses must be incurred to arrange for the proper registration of ownership of these lands, firstly in the name of Mrs Marashlian and secondly in the name of the seven children.
19. As indicated above (P-3), the cost of these transfer operations was five thousand Canadian dollars. All seven siblings agreed to pay their equal share of this amount.
20. John Marashlian recalls the situation as follows:
- At the meeting of August 1996, there were many discussions (and joyful celebrations) following the discovery of their existence of the lands. There was an agreement among the brothers and sisters that the value of the lands would be distributed equally to the extent of one seventh each.
21. Sima Marashlian states the following (upon learning of the existence of the inheritance at the August meeting):
"We never believed that we had something like that . . . we did not know what to do with all this money."
22. Violette Marashlian adds that no documents were circulated at the August meeting and she confirms that she did not know anything about any will at that time.
23. Olga recalls the following with respect to the August 1996 meeting at the house of her sister Sima:
"I was not aware that there was a will. I was not in possession of a copy of the will."
24. Olga's examination on discovery of August 29, 2000 reveals the following (pages 22-23):
Q. Do you remember a meeting in 1996 in Sima's house?
A. I don't remember nothing about that.
Q. At that meeting - though you don't remember, maybe it will help refresh your memory - Dikranouhi brought everybody up to date as to the status of the estate and some of the letters that she had been writing and receiving. Do you remember that?
A. Can you make it more clear?
Q. Well, for now, that's all I have. That's all I have in terms of information. Do you remember the meeting?
A. Letters about what?
Q. About the will, the status of the estate.
A. What year?
Q. 1996, early 1996, January, February, March.
A. I don't remember. I don't remember what it is.
Q. Okay, now that I'm going a little further, was it possible that Dikranouhi had come back from Israel and had some information about the properties?
A. Yes, yes.
Q. So, now, you remember that meeting in 1996?
A. Not, not really, no.
Q. You remember just that Dikranouhi went to Israel and came back and had some information.
A. Yes, and she came to tell all her brothers and sisters, yes.
Q. To tell them, right; also, that there would be charges of five thousand dollars ($5,000.00) for those - U.S. five thousand dollars ($5,000.00) - -
A. That's right, yes.
Q. For those . . .
A. Everybody equal pay, yes.
Q. Everybody pay equal.
A. Yes, me, too.
Q. So, Dikranouhi asked all the siblings to pay. And as far as you know, you paid. Did the others pay as well?
A. Everybody, paid.
Q. Everybody paid.
A. Yes.
Q. Do you know why she requested that money? Do you remember - she said it's going to cost five thousand dollars ($5,000.00) to transfer the estate.
A. Yes.
Q. Do you remember why . . .
A. Your question is not clear, sir.
Q. Do you remember why she asked for that money?
A. Yes, because she have seen a lawyer in Jerusalem for the lands. That's it.
Q. Thank you; was there an understanding in terms of the division of the estate and the fact that the Plaintiffs were contributing, because they all felt or they all thought that everything was going to be divided equally? As far as you can remember, was there such an understanding?
A. Equally, yes, equally, yes, but if you give me another question, I will answer you.
Q. I don't understand why you are asking. You say, yes, there was an understanding.
A. Yes, equally share, equal share.
Q. Okay.
A. Yes, not somebody takes more than the others.
Q. Absolutely.
A. No, that was before the will. We didn't know nothing about the will that time.
(emphasis added)
25. It is obvious that at the meeting of August 1996, everybody was elated with the idea of a forthcoming inheritance and that everybody believed at that time they would be sharing equally to the extent of one seventh each into this new windfall. Consequently, it was quite normal to see everybody agreeing to share equally into the expenses necessary for securing their respective rights and for registering their names and shares on the appropriate land transfer registries.
26. According to attorney Shehadeh's letter, the assets in question are undivided interests in relatively small parcels of land situated in Jericho and apparently some larger more valuable interests in Jerusalem. See for further details, exhibits P-5, D-2 and P-6. It has been suggested that these undivided interests could represent as much as $800,000.00 or $900,000.00 in United States currency. One seventh of such amounts (or 14.25%) could therefore represent approximately 120 to $125,000.00 U.S.
THE DISCOVERY OF MRS MARASHLIAN'S WILL
27. The question of the moment at which Mrs Marashalian's will is finally discovered is an important issue in this case. On this particular point, the versions of the Plaintiffs and of the Defendant differ substantially.
28. On the one part, the Plaintiffs (Abraham, John, Sima and Violette) allege that their mother's will was discovered a few months after the meeting of August 1996 and prior to the execution of the power of attorney (exhibit P-4) executed on the 4th of November 1996.
29. On the other part, Defendants Dicky and Olga alleged that their mother's will was not discovered until much later, more particularly when it became necessary to deal with the Jerusalem property. Being unable to act in Israel, Mr Shehadeh(4) will eventually retain the services of Mr. Brian D. Wine, advocate, in Jerusalem. According to the Defendants, Mrs Marshalian's will would have been discovered and identified only in early 1999.
30. Inasmuch as the date at which Mrs Marashlian's will has in fact been discovered is important and key to the determination of any binding agreement which may have been concluded between the seven children with respect to their respective ownership of the lands in question, it is therefore important to carefully review the evidence in detail.
31. At trial, John's testimony is as follows: after the August 1996 meeting, he acts as secretary for all brothers and sisters with respect to the newly discovered lands and more particularly with respect to communications with attorney Shehadeh. He categorically states that he was informed of the existence and contents of the will between August and November 1996. He adds that he questioned his brothers and sisters at the time about this new situation. Even though, according to this witness, the will is now known to all, his recollection is that, notwithstanding the will, the siblings were still of the view that the newly discovered lands would be partitioned on the basis of one seventh each.
32. John states also that, according to him, the purpose of executing a power of attorney in November 1996 "is to have the land divided equally". He also recalls that he saw a copy of the letter of Mr. Shehadeh dated September 14, 1995 to his sister(5) and that:
"My impression was that we would get 1/7 (one seventh) at the time."
33. Clearly, the letter P-3 above-recited would not have been drafted the way it was, if Mr. Shehadeh would have known or, for one instant, suspected there was a will. Mr. Shehadeh would not have asked for a letter from the family priest. He would have asked for the will. Also, he would not have been satisfied with the power of attorney, P-4, in the manner in which it was drafted, had there been a will.
34. Furthermore the instrumenting notary who drafted the power of attorney (P-4) would not have drafted it in the manner or in the language which he chose to use, had it been known to him or to the parties that Mrs Marashlian had left a will.
35. More particularly, the instrumenting notary would not have written on behalf of all seven siblings:
" . . . In our personal capacities, in our capacity as heirs, to the late Serpouhi Boghos Marashlian, widow of Sarkis Marashalian, do hereby, in our above capacities, constitute and appoint . . . "
" . . . to be our true and lawful attorneys in representing us, supervising and administering our properties moveables and immovables in Palestine, whether owned by us personally or devolving upon us by way of inheritance."
(emphasis added)
36. The Court must therefore draw, as an obvious conclusion, that at the time of the signature of the power of attorney (P-4) dated the 4th day of November, 1996, the instrumenting notary as well as the signing parties were unaware of the existence of the will of their late mother and that they continued to act as if Mrs Marashlian had died intestate.
37. Exhibit P-3 also contains another letter from Attorney Nadeem F. Shehadeh, dated December 19, 1997(6) reporting on the progress of the devolution of the Jericho lands which refers to . . . "allow us to finalize the transactions and issue the two title deeds with your share in your names before the end of the year". Obviously, at that time (end of 1997) Mr. Shehadeh is unaware of Mrs Marashlian's will. On December 19, 1997(7), John writes to attorney Shehadeh, once again without mentioning the will. On July 31, 1998 Mourad writes to John(8) again not making any reference to the existence of his late mother's will. All of these facts are incompatible with the proposition that the will would have been discovered in September/October 1996 prior to the execution of the Power of Attorney P-4.
38. Sima and Violette also attested to the discovery of the will about two months after the August 1996 meeting. However, their recollection is based on what John told them. Violette adds that John would have told her at the time not to worry and that "everything is going to be equal". She continued to participate in the costs of the estate because she was under the clear impression that she would inherit an equal share.
39. Olga and Dicky both categorically deny any knowledge of their mother's will before some time in 1998 and perhaps even before 1999.
40. At trial, Dicky also categorically states that she had no knowledge of the existence of the will, either in 1992 when her mother died, or in 1996 when the first arrangement was reached (at the August meeting) with respect to the repartition of the newly discovered lands. She further states that she was also unaware of the existence of the will when she signed the November 4, 1996 power of attorney.
41. When she saw a copy of the January 13, 1998 (exhibit P-5) letter from Shehadeh to John, she still did not know about the will. On the other hand, she was very upset to see that, according to the said letter and more particularly according to the title deeds annexed to the said letter and to the translations annexed to exhibit D-2, instead of getting an equal share in their mother's estate, it was now apparent that, under local Palestinian law, the rules of devolution of intestate successions were such that the sons (John Abraham and Mourad) were getting a double share of the real estate assets, while the daughters (Dicky, Olga, Sima and Violette) were only entitled to a single share(9) . The Court will deal with this issue later but it seems obvious that, as of the date of exhibit P-5, the will is still unknown to all.
42. Dicky states that she found the will only after her brother Mourad had called her and told her that attorney Brian D. Wine, the advocate retained to look after the Jerusalem lands, had inquired into the possible existence of such a document. Mourad apparently called her and asked her if she still had a black suitcase which belonged to her mother in which she kept her diplomas, her passport, some family documents, etc. Dicky looked for, and found, the suitcase. She also examined its contents with her husband Raymond (who also testified to this at trial) and, to their surprise, they discovered the first copy of the will(10) .
43. The first documentary evidence confirming that Mrs Marashlian's will was finally known to all is the first document of exhibit P-3, which is a letter from attorney Brian D. Wine to Mourad dated July 26, 1999 which reads in part as follows:
Dear Mourad
"I received your fax today and I also received the documents that your sister sent, namely the power of attorney from her and a notarized copy of your mother's will."
(emphasis added)
44. Dicky signed the power of attorney in question on July 13, 1999. It is obvious that this power of attorney was drafted by Brian D. Wine's office sometime before, at Dicky's request. Consequently, the will was discovered by, and known to, Dicky, prior to July 13, 1999.
45. But between Shehadeh's letter of January 13, 1998 and July 13, 1999 a period of 18 months elapses. One must look further into the evidence to pinpoint the moment at which the will is discovered.
46. Raymond Manneh is Dicky's husband. They were married in 1996. He has known Dicky's siblings since 1995. He testifies that he did not know about the will "before 1998 or 1999" when Mourad asked for a copy of the will. He recalls the telephone communication when Mourad suggested that they look into the "black briefcase". Mr. Manneh states:
- We looked for the will in a briefcase. She (Mrs Marashlian) had a first copy. We made a photocopy and sent it to Mourad. Then we got a certified copy of the will."
47. Dicky's examination on discovery of August 29, 2000(11) :
- How did you become aware of the will?
- He call me 1999, a few months ago, not long time ago.
. . .
- Yes, I check, and I find, but this is not the official. He said go - what do you call for to make the will, the original, to bring? I pay money - -
- You went to the notary.
. . .
- The will for Israel, but, right now, I'm talking about the discovery of the will.
A. Yes.
- Mourad called you - -
- Yes, sir.
- Said he had spoken with Mr. Wine - -
- Yes.
- And said go to look for your mother's - -
- Exactly.
- Will.
A. Exactly.
- And where did you find the will?
- I find that with her paper, but this is not the original.
Q. Where did you find it? I'm not asking for the original. The will that you find - -
A. In my house, in her, you know, suitcase.
48.
- Do you know
Q. So, the will - -
A. We were surprised.
Q. As far as I know then, as far as it has been explained to me, the will was found by you?
A. By me?
Q. Who found the will?
A. It was in my mother's suitcase. I never knew about it.
Q. Where?
A. In the house.
Q. With Dicky.
A. Not with Dicky, with all of us, Dicky, she never knew about it, nothing.
(emphasis added)
49. Having reviewed the evidence carefully, it is the Court 's opinion that Mrs Marashlian's will was discovered only after attorney Brian D. Wine inquired as to the possible existence of a will and, if there was one, asking for a copy thereof. The above-cited extracts of Dicky's and Olga's depositions (and their equivalent testimony reiterated at trial) could even suggest that Mourad may have been aware of the existence of the will because of the manner in which he seems to direct Dicky to look in a very specific place. However, Mourad did not appear either personally or through counsel and this case proceeded against him by default. He did not testify and the question of his own knowledge could not be inquired into. We know from the documentation of exhibit P-3, dated July 31, 1998, that Mourad is communicating with an attorney in Jerusalem. When he informs his brother about his intention to look into the value of the Jerusalem lands, he does so in a manner which suggests that he is unaware of his mother's will. In July 1999, Mr. Wine has apparently rendered services for a relatively small amount of $1,086.00. In the Court's opinion, if Mr. Wine was contacted in 1998, he certainly did not start to work on this matter before sometime in 1999 and most probably closer to July 1999 ratter than January 1999. In addition, exhibit D-2 was drafted by Brian D. Wine and faxed to Dicky for her signature on May 9, 1999(13) . Dicky testified that, after she had found that the Jericho lands had been partitioned in a manner inconsistent with the arrangement prevailing at the time, and after the discovery of the will, she was quite upset with the situation and decided to instruct Mr. Wine to deal with the Jerusalem properties in accordance with her mother's will. This required the preparation of a new power of attorney received by Dicky in May 1999 and returned in July completed, together with a copy of the will in early July 1999. The will must therefore have been discovered before the power of attorney was drafted, and presumably around March-April 1999.
50. In the opinion of the Court, the preponderance of evidence indicates that Mrs Marashlian's will was not known to the parties prior to March-April 1999 and if it was (a suggestion not preponderantly supported by the evidence), this information was certainly not communicated to either Shehadeh or Wine prior to July 1999. Until then, the common intention and understanding of all the siblings was to divide the newly discovered assets of their mother's estate equally on the basis of one seventh each. The Court must now decide if this agreement continued to prevail after the discovery of Mrs Marashlian's will or if the said understanding was put aside in favour of reverting to the testamentary devolution of exhibit P-1.
THE AGREEMENT
51. Before one may conclude to the existence or non existence of an agreement and decide upon the rights and obligations of the parties, certain principles need to be reiterated:
- Firstly, it is clear and not contested that Mrs Marashlian's estate was opened in Quebec and is governed by Quebec law. Mrs Marashlian had lived the last 21 years of her life in Montreal where all of her immediate family had decided to establish their principal residence, having emigrated from Jaffa, Israel. She also decided to make a will under the laws of Quebec and she also died here(14)
- Secondly none of the parties in this case has questioned or challenged the validity of Mrs Marashlian's will (P-1). Consequently, this will must be given its full legal effect, as it is written unless:
- some or all of the beneficiaries thereunder renounce to their respective legacies, in which case the properties and assets affected by such renunciation are redistributed to the legal heirs in accordance with the rules applicable to intestate successions, or;
ii) an agreement is concluded among all the children to share into the estate on an equal basis, notwithstanding the terms and conditions of the will.
- Fourthly, not only is there no valid and legal renunciation by any of the successors, but, more specifically, there is ample evidence suggesting that all of the beneficiaries of the estate of Mrs Marashlian have accepted the estate if not expressly, at least tacitly. Consequently, the first legal conclusions to be drawn from all of the foregoing is that:
- Mrs Marashlian's will is valid and not contested by any of the siblings.
- None of the siblings have renounced to their mother's estate and all have accepted the said estate either expressly or tacitly.
- Abraham, John, Violette and Sima are the particular beneficiaries of an amount of five hundred dollars each to be paid to them out of their mother's estate after payment of all expenses and all debts.
- Dicky, Olga and Mourad are the universal legatees of all of the net residue of their mother's estate to the extent of 33,33% each.
52. Obviously, this first conclusion does not put an end to this case. The next question must now be envisaged. Has there been a valid subsequent legal and binding agreement between all of the siblings to redistribute their respective shares amongst themselves so that each and every brother and sister ends up with one seventh of the net proceeds of their mother's estate? This issue is no longer a question of estate law. It is purely and simply a question of contract law. Has there been an agreement, yes or no? And if so, what did the parties agree upon? Finally, is this agreement enforceable and how should it be enforced?
53. The Court sees absolutely no legal problem for the parties to conclude such an agreement. Although it is illegal to form a pact upon a succession not yet opened, even with the knowledge and approval of the testator(18) , nothing in Quebec law prevents successors to agree on a different devolution and pacticize upon their respective shares in an estate, once the succession is opened and once all successors are fully aware of their respective rights(19).
54. The whole of the evidence demonstrates that, upon the death of Mrs Marashlian, all of the siblings were under the impression that they were entitled to one seventh of their mother's estate, not that much because they had agreed to this in full knowledge of their rights but because it was the normal and legal position to take in the absence of a will which would have modified this repartition.
55. This situation persists until the will is discovered. In other words, the Court does not believe that there was a legal and valid consensus or meeting of minds between the siblings as to their respective entitlement to a share of the estate prior to the discovery of the will. Prior to that event, it was normal for all the siblings to act as if each and every one of them was the intestate legal heir of their mother, being entitled to a one seventh undivided share of the net proceeds of the estate under normal rules of devolution. Consequently, the Court cannot draw from the conduct of the parties, prior to the discovery of the will, any factual element supporting the existence of a consensual agreement. The parties thought that they were legal heirs of an intestate succession entitled to their one seventh share, not as a result of an agreement but as a result of their understanding of what the law provided in similar circumstances.
56. After giving much thought to this issue, the Court is of the opinion that a valid and binding agreement was concluded between the siblings after the discovery of Mrs Marashlian's will.
57. This agreement is evidenced by many factual elements which cannot be ignored by the Court and which draw the Court to such conclusion.
58. If the Court uses the period of March-April, 1999 as the date at which Olga, Dicky and Mourad discover the will (and, as a result, if the Court establishes knowledge of the contents of the will for Abraham, John, Violette and Sima at the same period), the Court must look at the behaviour and conduct of the parties from that moment onwards. The evidence shows that several costs and expenses relative to the estate continue to be shared equally among the seven siblings after the discovery of the will. See for example the documentation annexed to exhibit P-6 and Mourad's hand-written note to his brother.
59. The only reason for Olga, Dicky and Mourad to continue to share equally in these expenses with their four other brothers and sisters, (more specifically if those expenses are directly related to the recognition of all of the sibling's rights into the Palestine and Israel properties) is because they accept, notwithstanding the devolution contained in the will, that an equal sharing is still appropriate in the circumstances. By this, they transform the original understanding, based on their belief that their mother had died intestate, into an agreement.
60. Throughout their testimony both on discovery and at trial, Dicky and Olga show great interest in sharing equally with all the other siblings in their mother's estate, before as well as after the discovery of the will. On many occasions they will repeat that they still wanted to go along with an equal partition, but for two events which caused them to review their previous position.
61. It has been clearly stated and acknowledged before this Court that the two events which have caused Dicky and Olga to shift from an equal sharing on the basis of one seventh each to the testamentary devolution of the will P-1.
62. The first event originates prior to their knowledge of the will but seems to get settled among the siblings after said discovery: it has to do with the uneven partition of the Jericho lands.
63. The second event is their receipt and their comprehension of the contents of the demand letter D-3.
64. Let us look more into these two events.
65. When Dicky, Olga, Sima and Violette find out in January 1998(20) that, instead of getting one seventh (or 14.25%) of the Jericho lands, they get only 10% while their brothers get 20%, they are all very upset. They are told by their brothers that, according to Shehadeh, nothing can be done at this time but once the lands are sold, notwithstanding their registered interests in the Jericho land transfer registries, they will nevertheless get their full 14.25% share of any proceeds of sale of the said lands. They finally accept this because they believe that this is the proper thing to do.
66. This understanding between the seven brothers and sisters takes place prior to the discovery of the will and is predicated upon their belief that they are seven equal legal heirs of their intestate mother. But, the Court also believes that even after the discovery of the will, Dicky and Olga and Mourad were prepared to go along with this concept, as long as it would be respected.
67. From January 1998 until October 1999, they are in agreement with an equal distribution of the proceeds of the estate which will be realized upon the sale of the lands. They continue to share equally into the expenses of securing their rights. The problem caused by the unequal devolution of their respective ownership rights in the Jericho lands appears to be reconciled with the new idea of an equal sharing in the proceeds of the sale of the said lands.
68. The second event occurs in February 2000. Previously, in October 1999 Mourad seems to change his mind. He sends a letter to each of the Plaintiffs (P-7) indicating that he now wants to go by his mother's will. Following this, Dicky, Olga and Mourad receive exhibit D-3 and read the following:
Our clients were shocked and disappointed when they received the letter of October 23, 1999 from Mourad Marashlian in which for the first time you appeared to ignore and/or renege on the agreement and understanding between the siblings. We are informed that the properties in Palestine have already been dealt with properly and in accordance with the agreement between the parties and the Power of Attorneys signed by all parties. However, there remain the properties in Israel and it is these properties, as well as any other assets of the Deceased, that should by all rights be transferred equally into the names of all siblings, and/or the proceeds therefrom be distributed in the same manner.
(emphasis added)
69. After receipt of this letter, Mourad seems to withdraw from the position he had taken in October 1999. A few weeks later he will be served with the action and decide not to appear and not to contest some.
70. As for (Dicky and Olga), they understand from this paragraph that, according to the Plaintiffs the Palestine lands have allegedly been "properly" dealt with. They react violently and read into this sentence that they will not get their one seventh share of these assets, either as registered owners or when the proceeds of the sale of the lands are distributed to the siblings. They come to the conclusion that, if it is to be so, they have no choice but to withdraw from their previous agreement to share equally and to revert to their mother's will and invoke their rights pursuant to the said will notwithstanding the fact that they may have previously agreed to partition the estate on another basis.
71. At trial, it was clearly stated that Dicky and Olga were prepared to go along with an equal partition but what made them change their minds were these two specific events. The first event (unequal partition of the Jericho lands) is settled by an understanding to share into the proceeds of the eventual sale of the lands. The second event, arising from Dicky's and Olga's understanding and reaction to, the demand letter D-3, is, as we shall see below, a further proof of the agreement of the parties to share equally into their mother's estate or, more precisely, to share equally into the proceeds of an eventual liquidation of the said undivided interests.
72. An agreement cannot be changed or modified at the will of one or more of the contracting parties. If the enforcement, execution or fulfilment of a contract is not respected between the parties, then it becomes a question, not of nullity, but of proper execution.
73. In the opinion of the Court, if there is no agreement between the siblings prior to their receipt of the letter D-3, there is no reason for Dicky and Olga to be upset. For Olga and Dicky, to react to the letter D-3 the way they do, presupposes the existence of a prior agreement which is once again (in their minds) repudiated not by them but by those who claim that the Palestine lands have been dealt with "properly".
74. But the letter D-3 may be read in a different way. The problematical sentence referring to a proper dealing of the Palestine lands may simply refer to the understanding between the siblings to share equally in the proceeds of an eventual sale rather than a refusal to give to the sisters an equal share in the said lands. In any event, the last sentence of the above cited extract of D-3 seems to suggest that this is what the writer of the letter really meant: the Palestine lands have been dealt with properly and in accordance with the agreement because the agreement between the siblings also called for an equal sharing into the proceeds of an eventual sale of the same lands.
75. On the whole, the Court concludes that the reaction of Dicky and Olga, is the result of a misunderstanding of the contents of the demand letter D-3. If they were so concerned about what they thought it said, this could only be because its contents were changing a prior agreement or understanding. It is true that the letter D-3 could have been clearer. It is also true that a written contract could have been prepared and signed between all parties concerned establishing clearly their common intent to an equal partition of their mother's estate. It was not done. If it had been done, there would have been no trial. It does not mean that there was no meeting of minds, no valid contract between the siblings with respect to such an equal partition of their mother's estate.
76. When an agreement is not respected or appears to be violated, this does not mean that there is no agreement. It means that proper steps must be taken to enforce the agreement in question.
77. Non-enforcement is not a cause of nullity of a contract. It merely gives rise to a recourse by the creditor of the obligation to enforce his or her right. Not to annul it.
78. It should not be forgotten that the power of attorney P-4 was never revoked after the discovery of the will. If, after such discovery, the intention of Mourad, Olga and/or Dicky was to revert to the devolution contained in the will, the first and immediate step to be taken would have been to revoke this mandate or, at least, give different and appropriate instructions to Mr. Shehadeh. He was never instructed by anyone in writing, not even Mourad, to change the entries on the land transfer registries to reflect the contents of the will. Mr. Shehadeh's instructions were, as a matter of fact, never changed or modified after the discovery of the will. This can only be explained by a subsequent understanding that, notwithstanding the will, everybody would share equally into the estate and more particularly, in the proceeds of sale of the assets in question. Otherwise one would have expected that Mr. Shehadeh's instructions (and power to act) would have been changed immediately.
79. To conclude that, after the discovery of the will, there is no ratification of the prior understanding on equal sharing into the estate and proceeds of sale is incompatible with the conduct of the parties with respect to sharing into the expenses. Nor is it compatible with the strong reaction of Dicky and Olga when they receive the letter of demand D-3. It is further incompatible with the following statements found in Dicky's examination on discovery(21) :
- Did you inform your sister Olga that you found a will?
- Yes, I did.
- Did you read the will?
- And - -
- I said - I told him, "Mourad,
- Your told Mourad this.
. . .
But why? I mean we decide to share together, right or not?"
- You discovered the will.
- Yes, sir.
- And this is after the properties in Jericho had been transferred.
- That's it. Although, sir, I said to my brother, "But you said . . . " - -
- Which brother?
- John, Mourad, but not with my other sister, because, other sister, they receive quarter like us. They receive half. We receive only quarter. I said to my brother, "
(emphasis added)
80. See also pages 47-48:
- In October 23, 1999, your brother Mourad sent a letter to John. Were you aware that he was going to be sending that letter?
- No.
- At that point, you knew that there was a will.
- Yes.
- Who said?
- Mourad.
- What was your - -
- It was shock for me.
- Opinion about the will?
- It was shock for me.
- A good shock?
- Big shock.
Q. Good shock.
- Yes, sir.
- Why was it a good shock?
- "
- " . . .
- Who said that? Who said that?
- Okay, so, Mourad was looking for trouble.
- Yes, sir.
- I said, "Please, Mourad, please, I beg you don't call me again. I'm sick". I get operated two (2) times, and nobody look after me, it takes to my husband, you know, she is far a little bit to come.
(emphasis added)
81. Why would Dicky say this if she did not intend to accept an equal sharing of the proceeds of the estate?
82. The Plaintiffs are therefore entitled to the benefit of this agreement but also they are obliged to enforce same.
83. Accordingly, on a global appreciation of the evidence, the preponderance favours the existence of an agreement. The agreement in question is that, notwithstanding the devolution contained in Mrs Marashlian's will, the assets of Mrs Marashlian's estate are to be partitioned equally among the seven siblings and the net proceeds of the said estate are to be distributed equally among the said siblings after the sale or liquidation of the undivided interests in the Jericho and/or Jerusalem lands.
84. It was explained at trial that since the properties in question devolving to their mother's estate were undivided interests in parcels of lands it was both difficult and impractical to market or liquidate these assets. It was suggested (but not proven) that the lands could not be sold without the unanimous consent of all co-owners. However, the Court is of the view that, in the absence of evidence of foreign law, the issues must be analyzed under the principles of Quebec law. The Court will therefore consider that the basic principle of Quebec law which stipulates that no one is required to remain in indivision(22) , also applies to these lands as if they were situated in Quebec. In order to give effect to the common intention of the parties to share equally in the proceeds, it will be necessary to terminate the indivision sell the lands in question.
85. As indicated above Defendant Mourad Marashlian was duly served with the Plaintiff's action. He chose not to appear, either personally or through counsel and did not defend the action. He was not examined out of court and was duly subpoenaed to appear as a witness at trial. He did not comply. During the trial, the Plaintiffs endeavoured to enter in evidence an affidavit signed by him prior to the institution of the action. The production of this affidavit was objected to by counsel for Dicky and Olga and the objection was maintained during the trial, principally on the basis that an affidavit could not be considered as a "document" susceptible of being entered into evidence under art. 403 C.C.P. and also because the Code of Civil Procedure still provides that evidence is made "viva voce" before the trial judge unless otherwise authorized or permitted. No exception to the general rules of evidence applies here which could authorize the Court to accept this affidavit into the record. However, even without considering the contents of the said affidavit, the whole of the evidence adduced by the Plaintiffs tends to show, with a sufficient degree of preponderance, that Mourad continued to participate to the costs of securing the Palestine and Jerusalem lands to the extent of one seventh of the said costs, even after his discovery of the will. John also had some conversations with Mourad where Mourad told him that he agreed with an equal partition after the discovery of the will. In any event, if Mourad was not in agreement with the position taken by the Plaintiffs, he could easily have made his position known by contesting the action and more particularly the allegations of the declaration which allege and attest to his consent. The evidence given at trial by John, Sima, Violette and Abraham on the existence of a verbal understanding remains unchallenged vis-à-vis this defendant.
CONCLUSION
86. The overall and general conclusion of this may therefore be expressed as follows: the will of the late Mrs Marashlian is valid and should be given its legal effect.; the agreement concluded between the seven siblings of the Marashlian family after their discovery of their mother's will is also valid and enforceable; as stated before, this agreement changes the manner in which the testamentary legatees will partition the assets of their mother's estate among themselves and calls for the assets of the estate - and more particularly the undivided interests of the estate in the Jericho and Jerusalem lands - to be liquidated before the proceeds are to be distributed in equal shares to the siblings.
87. Consequently, both the conclusions of the principal action as well as the conclusions of the cross-demand must be granted in part. For a better understanding of the foregoing, we must review these conclusions in detail, starting with the conclusions of the cross-demand, for reasons which will appear as obvious. The Court will then deal with the conclusions of the principal action.
88. The conclusions of the cross-demand read as follows and are numbered from 1 to 9 for easier reference:
- ACCEUILLIR la défense et demande reconventionnelle des défenderesses DIKRANOUHI et OLGA MARASHLIAN;
- REJETER l'action des demandeurs;
- ORDONNER que la succession de leur SERPOUHI MIREZIAN soit dévolue selon le testament signé par elle le 21 octobre 1983, devant le notaire Nicola L. Corbo;
- DÉCLARER les demanderesses reconventionnelles DIKRANOUHI MARASHLIAN et OLGA MARASHLIAN et le co-défendeur MOURAD MARASHLIAN seuls légataire universels de la succession de feue SERPOUHI MIREZIAN en vertu de son testament, signé le 21 octobre 1983, devant le notaire Nicola L. Corbo;
- DÉCLARER que tous les biens, terrains, propriétés, argents ou autres actifs de la succession de feue SERPOUHI MIREZIAN soient dévolus et transmis aux demanderesses reconventionnelles DIKRANOUHI MARASHLIAN et OLGA MARASHLIAN et au défendeur MOURAD MARASHLIAN à parts égales;
- ORDONNER aux demandeurs - défendeurs reconventionnels ABRAHAM MARASHLIAN, JOHN MARASHLIAN, SIMA MARASHLIAN et VIOLETTE MARASHLIAN FARAH de transférer aux demanderesses-reconventionnelles DIKRANOUHI MARASHLIAN et OLGA MARASHLIAN et au défendeur MOURAD MARASHLIAN à parts égales, la propriété des deux (2) lots situés à Jéricho, nommément "the parcels (10) and (32) of Block (33016)" qui leur furent dévolus en vertu du document produit en la présente instance sous la cote P-5 et ce dans les trente (30) jours du jugement à intervenir en l'instance;
- A DÉFAUT par les défendeurs reconventionnels ABRAHAM MARASHLIAN, JOHN MARASHLIAN, SIMA MARASHLIAN et VIOLETTE MARASHLIAN FARAH de ce faire dans le délai imparti, ORDONNER que le jugement à intervenir équivale à titres;
- DONNER ACTE à l'engagement des demanderesses reconventionnelles DIKRANOUHI MARASHLIAN et OLGA MARASHLIAN de rembourser aux défendeurs reconventionnels lors de la signature du transfert de propriétés susdites les deux-tiers (2/3) des sommes d'argent qu'ils ont déboursées pour être expédiées à Me Shihadeh et associés et à Me Brian D. Wine;
- CONDAMNER solidairement les demandeurs - défendeurs reconventionnels à tous les frais.
89. Conclusion 1 will be granted in part. Conclusion 2 will be dismissed.
90. Conclusion 3 must be granted to declare the will of the late Serpouhi Mirezian is valid and enforceable. As stated previously, nobody contests the will, none of the siblings has renounced to his or her share of the estate and all siblings have accepted the estate either expressly or tacitly.
91. Conclusions 4 and 5 are merely declarative and are a consequence of the validity of the will. However, the agreement, concluded between the parties after their discovery of the will, modify the devolution of the net assets of Mrs Marashlian's estate. These conclusions cannot be granted as drafted and will have to be altered to reflect the reality of the agreement.
92. Conclusion 6 will also be granted insofar as, for the reasons already outlined above on the issue of indivision, the liquidators of the estate will be obliged to put an end to said indivision, cause the said lands to be sold and the proceeds of such sales repatriated into the estate before distribution in accordance with the agreement concluded between the siblings.
93. Conclusion number 7 is not susceptible of execution outside the territorial jurisdiction of this Court.
94. Conclusion number 8 will be taken into account when the liquidators of the estate render their final accounting.
95. As for conclusion number 9, the Court considers that this whole issue could have been avoided had there been a better communication between the parties or the signature of a comprehensive agreement. Inasmuch as all parties are nevertheless in good faith, there shall be no award as to costs.
- The conclusions of the principal action read as follows and are also numbered from 1 to 8:
- GRANTS the present action;
- ORDER Defendants Dikranouhi Marashlian and Mourad Marashlian to produce a detailed accounting of the administration of the Estate to date of judgement including without limitation a list of all assets and liabilities, as well as all amounts expended to date of judgement from or in respect of the Estate;
- DECLARE Plaintiffs each to be 1/7
SUBSIDIARILY AND STRICTLY UNDER RESERVE OF THE FOREGOING:
- ORDER Defendants to return all amounts paid to them on account of attorneys fees and charges, and that all contributions to the legal and other costs relating to the transfer of properties be returned to Plaintiffs;
- ORDER the cancellation of all Powers of Attorney signed by Plaintiffs, thereby rendering them null and void and without effect;
- THE WHOLE with costs against Defendants Dikranouhi and Olga, but not against Defendant Mourad unless he contests the present action, in which case with costs against all Defendants.
96.
97. Conclusion 2 will be granted but the accounting shall only take place after the liquidators will have completed their administration and, more particularly, after the liquidation of the estate's undivided interests into the Jericho and Jerusalem lands.
98. Conclusion 3 and 4 will be replaced by a declaration giving act of, and ratifying, the parties' agreement and ordering the parties to abide by, and to respect, the same and to do all things necessary to implement its terms and conditions.
99. Conclusion 5 is unnecessary.
100. Conclusion 6 is replaced by the obligation for the liquidators to furnish an accounting and to distribute the net proceeds of the estate. All expenses incurred by any of the parties will then be taken into account.
101. Conclusion 7 will be replaced by an order to transmit a copy of the present judgement to Messrs Shehadeh and Wine.
102. Conclusion 8 will be dealt with in the same manner as conclusion 9 of the cross-demand.
103. Judgement is therefore rendered as follows, in accordance with the foregoing.
104. FOR THESE REASONS, the Court:
105. DECLARES the will of the late Serpouhi Boulos Mirezian ("the Deceased") dated October 21th, 1983 before Notary Nicola L. Corbo and registered under n° 22934 of his minutes to be valid and enforceable;
106. GRANTS the seisin of all of the patrimony of the estate of the Deceased unto DIKRANOUHI MARASHLIAN and MOURAD MARASHLIAN in their capacity as liquidators of the said estate;
107. ORDERS the said liquidators to perform an inventory of all of the Deceased's patrimony, including all assets and liabilities thereof and more particularly to perform an inventory of all of the Deceased's rights, title and interest into certain parcels of land situated in Jericho, Palestine and in Jerusalem, Israel and to take all steps necessary or appropriate to secure the ownership of the estate of the Deceased into the said lands;
108. ORDERS all of the parties, namely, ABRAHAM MARASHLIAN, JOHN MARASHLIAN, SIMA MARASHLIAN, VIOLETTE MARASHLIAN, DIKRANOUHI MARASHLIAN, OLGA MARASHLIAN AND MOURAD MARASHLIAN to return unto the liquidators any property or assets which they may have received and which fall within the patrimony of the said estate and more particularly any right title and interest which may have been attributed to all or any of them into certain parcels of land situated in Jericho, Palestine and in Jerusalem, Israel;
109. RATIFIES the agreement concluded between the parties hereto to share equally into the net proceeds of the estate, the whole notwithstanding the devolution contained in Article Second of the will of the Deceased and ORDERS the parties hereto to abide by said agreement and, in so doing:
110. ORDERS the liquidators of the estate:
- to liquidate all property and assets of the estate and to put an end to any indivision in which the estate may be a party and more particularly to put an end to the indivision with respect to the lands situated in Jericho, Palestine and in Jerusalem, Israel;
- to pay all debts and liabilities of the estate;
- to constitute seven equal shares or lots consisting of the net proceeds of such liquidation taking into account all expenses and disbursements incurred by any of the parties hereto with respect to the estate since the death of the Deceased;
- to distribute and deliver the said shares to each of the parties hereto, namely ABRAHAM MARASHLIAN, JOHN MARASHLIAN, SIMA MARASHLIAN, VIOLETTE MARASHLIAN, DIKRANOUHI MARASHLIAN, OLGA MARASHLIAN AND MOURAD MARASHLIAN together with a final accounting of their administration, the whole according to law.
111. ORDERS the liquidators to communicate a certified copy of the present judgement to Messrs Nadeem Shehadeh of Ramallah, Palestine and to Brian D. Wine of Jerusalem, Israel;
112. Without costs.
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Me Harry Dikranian STERNTHAL KATZNELSON MONTIGNY 1010, West de la Gauchetière Suite 1020 Montreal (Quebec) H3B 2N2 For the Plaintiffs |
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Me Manon Bourbonnais 61, Jacques Cartier Valleyfield (Quebec) J6T 4R4 For the Defendants |
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| Date of hearing: | February 11-12, 2002 |
1. For purposes of easier identification, the Court will identify the parties by their first name, as it was done at trial.
2. Exhibit P-3 contains several documents. The first one is a fax letter of July 26, 1999 from attorney Brian D. Wine to Mourad which contains a handwritten note from Mourad to Sima; the second document is the letter of September 14, 1995 from Shehadeh to Dicky, (or "Vicky"); the third document is a letter of December 19, from Shehadeh to John; the fourth document is a fax from John to Shehadeh dated December 19, 1997 and the last document is a fax from Mourad to John dated July 31, 1998.
3. See articles 667 and 668 C.c.Q. as well as corresponding provisions of the Civil Code of Lower Canada, more particularly article 625 sub-paragraphs 1 and 2.
4. Mr. Shehadeh indicates in his correspondence that he will be obliged to retain counsel in Israel and so advises the parties. However it may also be possible that Mourad or even John would have retained the services of Mr. Wine. This was necessary because Mr. Shehadeh was unable to perform legal services in Jerusalem, and not because the factual situation was different. In many event, the identity of the person who actually retains the services of Mr. Wine is not material to the issue of this case.
5. P-3, second document.
6. P-3, third document.
7. P-3, fourth document.
8. P-3, fifth and last document.
9. No evidence of foreign law was made before the undersigned. Also, Mr. Shahadeh was not heard as a witness. Based upon the whole of the evidence, the undersigned concludes that Mr. Shehadeh acted in the devolution process as if Mrs. Marashlian's succession was intestate and governed by local Palestinian law. It was suggested by some of the witnesses that this devolution process was the rule under Islamic law but, once again no expert evidence was presented to affirm or contradict this suggestion.
10. The copy of Mrs Marshalian's will which was filed by the Plaintiffs in the record of this case is a photocopy of the first copy of the will and, apparently, is a photocopy of the document foud by Dicky in her mother's affairs. It would also make sense that this would be the "first copy" remitted by Notary Corbo to Mrs Marashalian in 1983. It is not a copy issued by the notary after the death of Mrs Marashlian. Apparently notary Corbo died prior to 1992. If the Chambre des notaires or the depositary of notary Corbo's greffe would have issued a copy of Mrs Marashlian's will, the certification of the copy would mention it. Accordingly, it seems that exhibit P-1 is Mrs Marashlian's own copy of her own will which was subsequently discovered by Dicky.
11. Pages 33-34, 35, 36.
12. Pages 34-35.
13. This is clearly indicated on the original copy of exhibit D-2, lower right corner.
14. Art. 613 C.c.Q.:
The succession of a person opens by his death, at the place of his last domicile.
The succession devolves according to the prescription of law unless the deceased has, by testamentary dispositions, provided otherwise for the devolution of his property. Gifts mortis causa are, in that respect, testamentary dispositions.
(N.B.: Reference is made to the Civil Code of Quebec of 1994 although the corresponding sections of the Civil Code of Lower Canada may apply. This is so for purposes of convenience. Technically, the Civil Code of Lower Canada applies to the circumstances of the opening of Mrs Marashlian's estate in 1992).
15. Art. 637 C.c.Q.:
Acceptance is express or tacit. It may also result from the law.
Acceptance is express where the successor formally assumes the title or quality of heir; it is tacit where the successor performs an act that necessarily implies his intention of accepting.
16. Art. 646 C.c.Q.:
Renunciation is express. It may also result from the law.
Express renunciation is made by notarial act en minute or by a judicial declaration which is recorded.
17. See articles 632, 633 and 640 C.c.Q. and their corresponding equivalent dispositions of the C.C.L.C.
18. Art. 631 C.c.Q. Art. 658 C.C.L.C.
19. It has been held in the case of Landry vs. Pelletier (AZ-0031139; J.E. 2000-515 .) that an agreement of partition of an intestate succession between a successor and a non-successor was not only possible but enforceable, if proven adequately. The facts of this case are also noteworthy because the agreement subsequently validated by the Court was based on an apparent ignorance of one of the parties that, but for the said agreement, she would have been entitled to the whole of her daughter's estate.
20. See exhibit P-5.
21. Ms. Dikranouki Marashlian examination's , August 29th, 2000 pp. 38, 39 and 40.
22. Art. 1030 C.c.Q.
AVIS :
Le lecteur doit s'assurer que les décisions consultées sont finales et sans appel; la consultation du plumitif s'avère une précaution utile.