Sapusak Estate, Re, (1984) 3 O.A.C. 234 (CA)

• Judge: Lacourcière, Zuber and Robins, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 15, 1984
• Jurisdiction: Ontario
• Citations: (1984), 3 O.A.C. 234 (CA)

Sapusak Estate, Re (1984), 3 O.A.C. 234 (CA)

MLB headnote and full text

Re Sapusak Estate

Indexed As: Sapusak Estate, Re

Ontario Court of Appeal

Lacourcière, Zuber and Robins, JJ.A.

April 6, 1984.

Summary:

A testatrix left her son 30 acres of her 100 acre farm. The 30 acres the son was to receive was unspecified. The son requested the executor to convey to him a particular 30 acres chosen by the son. When the executor refused, the following application was brought. The Ontario High Court, in a decision unreported in this series of reports, dismissed the son's claim to the particular 30 acres and interpreted the testatrix's will in such a manner as to provide for a proportionate distribution of the whole of the estate. The son appealed.

The Ontario Court of Appeal allowed the appeal and held that the son had the right to select the 30 acres he wished to receive.

Wills - Topic 3206

Gifts - Gifts of unspecified property - Selection by beneficiary - A testatrix left her son 30 acres of a 100 acre farm - The Ontario Court of Appeal held that the son had the right to select the 30 acres he wished - The court referred to the law respecting a beneficiary's power to choose or select his bequest where the bequest was unspecified - See paragraphs 7 to 8.

Cases Noticed:

Guild et al. v. Mallory, 41 O.R.(2d) 21, refd to. [para. 7].

Asten v. Asten, [1894] 3 Ch. 260, appld. [para. 7].

Counsel:

J.R. Hunter, Q.C., for the appellant, Joseph Sapusak;

Howard Alopert, for Thomas Sands, respondent;

Morris Singer, for the residual beneficiaries, respondents.

This appeal was heard before Lacourcière, Zuber and Robins, JJ.A., of the Ontario Court of Appeal on March 15, 1984. The decision of the Court of Appeal was delivered orally by Zuber, J.A., and released on April 6, 1984.