Summary

Keywords

Property - Undivided co-ownership, Successions, Wills - Property — Undivided co-ownership — Partition — Immovable — Successions — Wills —Whether, by interpreting the validity and enforcement of a testamentary bequest of an immovable on the basis of its conformity with municipal zoning and construction bylaws, the court has substantially diminished the widest freedom of testation and ownership, both fundamental rights enjoyed under the Civil Code of Quebec — Whether, in so doing the court has redefined the question of ‘convenience’ to suit the remedy of partition.

Summary

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The applicant, Panagiotis Pavlakidis, and the respondent, Georgia Pavlakidis, are siblings. In 2002, their mother passed away. In her Will, she declared the siblings the sole universal legatees in equal shares of the residue of her property, which included an immovable made up of two buildings and a garage. The Will also set out legacies by particular title bequeathing one building to each sibling.

In the years following their mother’s death, the relationship between the siblings became acrimonious. In 2016, the respondent instituted proceedings against the applicant, seeking an order for the partition and sale under judicial authority of the immovable. The applicant filed a cross-application opposing a partition giving rise to a sale under judicial authority and seeking instead a declaration that he is the sole owner of one building and an order for the partition of the lot.

The Quebec Superior Court allowed the respondent’s action, dismissed the applicant’s cross-application, declared the termination of the undivided co-ownership of the immovable property and ordered its sale by agreement under judicial authority. The Court of Appeal unanimously dismissed the applicant’s appeal from that decision.