Court of Appeal of Quebec

Tanzer c. Spector

July 12, 2017


Dufresne, Parent and Dumas (ad hoc)

Appeal from a judgment of the Superior Court dismissing objections submitted in anticipation.  Allowed in part.

Tanzer,  the de cujus, died in September 2014. A will prepared in April 2013 provided that his wife, the respondent, would be a legatee by particular title. A different  will, prepared in October 2013, provided that she would not inherit any assets at all. The appellants, his children from a previous marriage, are the heirs of the de cujus and the liquidators of his estate under the later will. According to the respondent, between the first and second will, the de cujus went to the offices of the notary Malus to make a new will, but the notary ultimately refused. The respondent brought an action against the appellants, arguing that the October 2013 will is invalid and alleging it was written under the influence of one of the appellants, who is also one of the heirs. In the context of her proceeding, she was authorized, subject to any objections based on professional secrecy that would need to be decided, to examine the notary Malus out of court about the circumstances of the de cujus’s consultation and the reasons the notary refused to write a new will after having apparently written one or more drafts. The trial judge dismissed the appellants’ objections submitted in anticipation on the ground that the de cujus’s testamentary capacity was at issue and authorized the notary to provide answers.

In the circumstances of the case, where undue influence on the testator was at play, professional secrecy could not prevent the notary from testifying. The disclosure of confidential information given to a notary consulted by a now-deceased person – whether the executing notary or the notary consulted to write the will and who, for one reason or another, did not complete the task – which would otherwise have been protected by professional secrecy, may be authorized only if it is shown that it is in the interests of justice to do so. When the argument that the testator was subject to undue influence is raised in support of a motion to examine, the allegation must be serious for authorization to be granted. In this case, the consultations with the notary Malus are contemporaneous with the signature of the last will. Moreover, the admissibility into the evidence of anything the notary Malus may have observed or learned during his meetings or conversations with the de cujus are not in doubt, given the nature of the allegations from which the respondent’s judicial application arises. The deceitful nature of captation or undue influence, if proved, will compromise the validity of the testator’s intention. In this case, where the parties all had their reasons to raise the argument of captation – the appellants with regard to the April 2013 will, and the respondent with regard to the October will – transparency is required in the interest of the de cujus, his widow and his children.

*Summary by SOQUIJ
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