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| CANADA |
| PROVINCE OF QUEBEC |
| ______________________________________________________________________ |
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| IN THE PRESENCE
OF: |
THE HONOURABLE |
ROBERT MONGEON,
J.S.C. |
| ______________________________________________________________________ |
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| |
ABRAHAM
MARASHLIAN
JOHN MARASHLIAN
SIMA MARASHLIAN PORTER
VIOLETTE MARASHLIAN FARAH |
| Plaintiffs |
| Vs. |
DIKRANOUHI MARASHLIAN
OLGA MARASHLIAN
MOURAD MARASHLIAN |
| Defendants |
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| ______________________________________________________________________ |
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| R E C T I F I E
D J U D G M E N T |
| ______________________________________________________________________ |
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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
Dear Vicky,
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
- 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.
3. Parcel 21 of block 6
- 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).
Now please read carefully the following
remarks:
- With respect to the first parcel mentioned above,
the name of your mother already appears as an owner.
Therefore what we need is a transfer from
the name of your late mother to the name of her heirs
namely, yourself and all your brothers and sisters. To
be able to establish the name of the heirs I shall
need a certificate from your priest in Canada
mentioning the names of all your brothers and sisters
signed by your priest at your end. I also
require the death certificate of your mother, if your
mother died in Jerusalem you need not to send the
certificate of the Priest, then I shall apply to the
Ecclesiastical Court of the Armenian Community for a
Succession Order for your mother.
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.
Therefore, we
need first of all to register the shares of John
Marizian in the names of his sisters and then transfer
the share of your mother to the name of her heirs
namely, yourself and all your brothers and sisters.
The costs of each transaction is 2% of the assist
value of John Marizian shares. The documents required
are those requested in paragraph 1 above.
With respect to the Qualandia Land,
please note that these lands are registered in
Jerusalem and shall be treated differently.
I shall study their status and shall let you know what
I need with respect to them.
Now please send the following:
A power of attorney from each and every
one of your mother's heirs. (Yourself, your brothers
and sisters) in the enclosed forms.
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.
Yours faithfully,
A.F. & R. Shehadeh
Advocates
(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?
Me, I don't remember nothing about the
will. What happened that, Mourad,
he called me, and he said, "Mom, she
had a will". I said, "What
will?"
Now, when did Mourad call you?
- He call me 1999, a few months ago, not long time
ago.
He goes to me, "There
is mother will". I said, "Mother
will? What kind of will? I don't remember".
Honest to God. He said, "Check
in her, you know, her papers and
everything". I said, "What
papers?". She said, "She has a purse".
You see, he knows everything more than me, because I
used to work all the time, you know, Saturday's, every
time. He says, "There is her personal papers over
there". I said, "Yes?". Because she had
diploma, my mom. She had her passport. She have, you
know, her personal things. She used to take care of
her, you know - -
. . .
Yes, sir, and then Mourad told me, you
know, there is my mom will. I said,
"What will?". He said,
"Mom, she have will. She
make a will". He said, "Check,
check, check, check". I said, "Why you are
asking about it now, Mourad?" He goes to me,
"Mr. Bryan, he said if, your mother, she don't
have the will that she did for you, for all brother
and sister, you know, I have to go according to this
one". He said, "He want to see that. And I
know, my mom, she had a will". He said like that,
my brother.
Mourad said.
- 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. Olga's examination on discovery of August 29,
2000(12) :
- Do you know
how the will was discovered?
The will, when my brother Mourad called
from Vancouver, he say, "Mr. Bryan wants if there
is a will, if you have any will". My
sister say, "I don't know". He said to her,
my brother Mourad, "She has a suitcase. Go and
check in there". And then, when she
went and check, she said, "Give me a chance to
check", and she find it. And she told
him, "Oh, my God, I never knew about it".
And it was a copy only. It's not the real one. Then,
he said, "Please, I need it. Go to Chambre des
Notaires and get the real one".
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)
. The Court concludes therefore that
Mrs Marashalian is domiciled in Quebec at the time of
her death.
- 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.
Thirdly although acceptance of a
succession by a beneficiary may be express or tacit(15)
, renunciation must be express(16).
There are only two ways to renounce: by notarial act or
by judicial declaration. In the present instance, none
of the beneficiaries has renounced to his or her share
of their mother's estate as established by the will P-1.
Furthermore, considering the fact that a renunciation
must be effected within a delay of six months from
either the death of the "de cujus", or
from the knowledge of one's right(17),
it is quite evident that this delay has long since past
for all parties, even if, for some if not for all of
them, their knowledge of the existence and contents of
the will is as late as March or April 1999.
- 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?
I did read it then.
- I said - I told him, "Mourad,
buy
why he need the will when we decided we are going to
go all equal?"
- Your told Mourad this.
. . .
- 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, "
But why?
I mean we decide to share together, right
or not?"
(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.
Did you agree with the contents of the
will in terms of the divisions?
No, I don't say no. I don't say yes. I
don't know say nothing. He said to me,
"Just go and send it to me. That's what I
want".
- 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?
- "
Why you start now to do things
like that, when we were sharing equally?"
I said, "Why . . . " - -
Who said - -
- " . . .
you look for trouble?"
- Who said that? Who said that?
I said that.
To Mourad?
Yes, my brother - -
- Okay, so, Mourad was looking for trouble.
- Yes, sir.
Did you agree with him?
I don't.
No.
No, honest to God.
After the will was discovered.
My husband, he said to my brother,
"You looking, Mourad, for trouble. You
looking for trouble". Honest to God, my husband
told him, and he told her, too. He said, "If your
brother . . . " - -
Is Mourad still looking for trouble?
- 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 | | | |
