Granot v. Hersen et al., (1999) 120 O.A.C. 320 (CA)

• Judge: Doherty, Austin and O'Connor, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 16, 1999
• Jurisdiction: Ontario
• Citations: (1999), 120 O.A.C. 320 (CA)

Granot v. Hersen (1999), 120 O.A.C. 320 (CA)

MLB headnote and full text

Temp. Cite: [1999] O.A.C. TBEd. AP.048

In The Matter Of the Estate of Henry Hersen, deceased.

Lillian Granot (applicant/respondent in appeal/appellant in cross-appeal) v. Roland Hersen and Lillian Granot as Executrix of the Estate of Henry Hersen, Michelle Hersen and the Children's Lawyer on behalf of the minor, Kenneth Hersen (respondents/appellant in appeal/respondents in cross-appeal)

(C29379)

Indexed As: Granot v. Hersen et al.

Ontario Court of Appeal

Doherty, Austin and O'Connor, JJ.A.

April 16, 1999.

Summary:

Hersen died. When he made his last will and testament he was domiciled in and a resident of Ontario. However, he had both Canadian and Swiss citizenship. Under Hersen's will, he named his daughter, Gran­ot, sole executrix and residual beneficiary. He left his son Roland a cash legacy of $600,000 and land valuing $28,000. He did not leave his other son, Norbert (who was dead, but who had two children) anything. The value of the Ontario estate exceeded $3 million. Additionally, Hersen had a condo­minium in Switzerland which was valued at $600,000. The follow­ing questions were put before the court regarding the administration of the estate (Rules of Civil Procedure (Ont.), rule 14.05(3)): (a) having regard to the provisions of the will as a whole and the fact that one of the estate's assets was a condominium in Switzerland, did Ontario law or the Swiss law of forced heirship govern beneficial entitlement to the condo­minium?; (b) if the answer to question (a) was "Ontario law", then did Roland have any entitlement to the estate beyond that set out in the will?; (c) if the answer to (a) was "Swiss law of forced inheritance" then did Roland have any en­titlement to the estate beyond that set out in the will?; and (d) if the answer to ques­tion (b) or (c) was "yes", then was Roland's entitlement reduced to any extent by his entitlement pursuant to the will, and if so, to what extent?

The Ontario Court (General Division), in a decision reported 58 O.T.C. 32, answered the questions as follows: (a) the Swiss law of forced heirship applied to the condominium in Switzerland; (b) did not need an answer; (c) under the law of forced heirship, Roland did have an entitlement beyond that set out in the will; (d) when the Swiss heirship rules were read in con­junction with Ontario's succession Law Reform Act, Roland's en­titlement to the condominium was reduced by his entitlement under the will. That is, Roland had to elect to take either his entitle­ment by Swiss law or his entitlement under the will. Roland appealed, asserting that the doctrine of election had no application.

The Ontario Court of Appeal allowed the appeal. Roland was entitled to the specific gifts made to him in the will and his interest in the Swiss condominium.

Equity - Topic 4628

Election - When applicable - Selection of benefits under inconsistent instrument(s) - Hersen died - An Ontario resident, he had both Canadian and Swiss citizen­ship - Under Hersen's will, his daughter, Granot, was sole executrix and residual beneficiary - He left his son Roland a cash legacy of $600,000 and land valuing $28,000 - Ad­ditionally, Hersen had a condominium in Switzerland which was valued at $600,000 - At issue was Roland's entitlement to the condominium - The trial judge held that the Swiss law of forced heirship applied - Consequently, Roland had to elect to take either his entitlement by Swiss law or his entitle­ment under the will - Roland ap­pealed, assert­ing that the doc­trine of elec­tion had no application - The Ontario Court of Appeal allowed the appeal - Roland was entitled to the specific gifts made to him in the will and his interest in the Swiss condo­minium.

Wills - Topic 5000

Construction - General - Ascertainment of intention of testator - [See second Wills - Topic 7255 ].

Wills - Topic 7255

Construction - Quantity of interest taken - General principles - Election doctrine - [See Equity - Topic 4628 ].

Wills - Topic 7255

Construction - Quantity of interest taken - General principles - Election doctrine - The Ontario Court of Appeal reviewed the doctrine of election as it applied in wills - The court concluded that "the doctrine of election applied only where the testator clearly intended to dispose of another's interest in property while at the same time making a gift to that person under his will; that intention must be made express or appear by necessary implication from the terms of the will; one starts from the premise that the testator only intended to dispose of his or her own property in the will; and general words in a will like 'all my estate' or a residuary gift in general terms will not, standing alone, evince an intention to dispose of property or an interest in property which the testator was not entitled to dispose of in his will" - See paragraphs 8 to 44.

Cases Noticed:

Graham v. Clark, [1949] 1 W.W.R. 751 (Alta. T.D.), affd. [1949] 2 W.W.R. 1042 (Alta. C.A.), refd to. [para. 11].

Greatorex v. Cary (1802), 31 E.R. 1223, refd to. [para. 14].

Dummer v. Pitcher (1833), 39 E.R. 944 (L.C.), refd to. [para. 14].

Usticke v. Peters (1858), 70 E.R. 183, refd to. [para. 14].

Gibson v. Gibson (1852), 61 E.R. 367, refd to. [para. 14].

Maxwell v. Maxwell (1852), 51 E.R. 717, affd. 42 E.R. 1048 (H.L.), refd to. [para. 14].

Mengel's Will Trusts, Re; Westminster Bank v. Mengel, [1962] Ch. 791, refd to. [para. 26].

Hurst, Re (1905), 11 O.L.R. 6 (C.A.), refd to. [para. 33].

Hill, Re, [1951] O.R. 619 (H.C.), refd to. [para. 33].

Sullivan Estate, Re (1951), 3 W.W.R.(N.S.) 363 (Alta. S.C.), refd to. [para. 33].

Abbot v. Grant, [1965] S.C.R. 628, refd to. [para. 33].

Baker, Re (1981), 10 E.T.R. 146 (Ont. H.C.), refd to. [para. 33].

Mawson, Re, [1939] O.W.N. 294 (H.C.), refd to. [para. 34].

Shillabeer v. Diebel - see Shillabeer Estate, Re.

Shillabeer Estate, Re (1979), 18 A.R. 173; 100 D.L.R.(3d) 279 (T.D.), refd to. [para. 41].

Authors and Works Noticed:

Atkinson, Handbook of the Law of Wills (2nd Ed. 1953), p. 768 [para. 13, foot­note 2].

Cheshire, G.C., and North, P.M., Private International Law (12th Ed. 1992), p. 856 [para. 10].

Feeney, Thomas G., The Canadian Law of Wills (3rd Ed. 1987), vol. 2, p. 214 [para. 8].

Page on the Law of Wills (1960), vol. 5, pp. 598 to 600 [para. 13, footnote 2].

Snell, Principles of Equity (29th Ed. 1990), p. 504 [para. 10].

Counsel:

Timothy Youdan and Jennifer Pfuetzner, for the appellant;

Brian A. Schnurr, for the respondent.

This appeal was heard on February 25 and 26, 1999, before Doherty, Austin and O'Connor, JJ.A., of the Ontario Court of Appeal.

On April 16, 1999, Doherty, J.A., delivered the following judgment for the Court of Appeal.