Cotnam, Lavallée, Bachand

Appeal from a judgment of the Superior Court dismissing an application for probate of a will made in the presence of witnesses. Dismissed.

On March 4, 2021, Adam prepared a document with the assistance of his spouse, Diamond, indicating that he intended to leave property to her and to other people. This document was written by Diamond and signed by Adam and two witnesses. Adam died on March 9, 2021. In May 2021, Diamond applied to have the will probated. Following Diamond’s death in July 2022, the appellants continued the proceeding. The respondents abandoned their contestation during the proceedings.

The trial judge dismissed the application for probate because the document did not meet all the formalities required for a will made in the presence of witnesses: (1) it was written by a third person who was not disinterested and (2) the evidence did not establish that Adam had declared that the document was his will, contrary to the requirements of the second paragraph of article 727 of the Civil Code of Québec (S.Q.  1991, c. 64) (C.C.Q.). The judge also found that the will did not meet the conditions of article 714 C.C.Q. She was of the view that the disinterestedness of the third person who writes the will is an essential condition of its validity.

The appellants insisted on the fact that no provision of the Civil Code of Québec requires that the third person who writes the will be disinterested. They added that the Superior Court judgments to the contrary are wrong because they rely on an erroneous reading of Lemaine (Succession de), (C.A., 2012-07-31), 2012 QCCA 1371, SOQUIJ AZ-50880422, 2012EXP-2934, J.E. 2012-1569. In their view, to invalidate any will written by a third person is a disproportionate means of fighting the risk of fraud or undue influence to which the testator is exposed.

The trial judge did not err in verifying whether the document met the applicable formal requirements, even though there was no contestation. She also rightly concluded that a will written or signed by a third person named as a legatee in that will does not meet the formalities applicable to wills made in the presence of witnesses. In Lemaine (Succession de), the Court ruled that the third person who signs a will made in the presence of witnesses for the testator cannot be a legatee because of the benefit this legatee is likely to draw from the will and the need to protect the testator from any risk of fraud or undue influence. Since then, the case law of the Superior Court has been unanimous: a will made in the presence of witnesses or a codicil written by a legatee does not meet the requirements set out under article 727 C.C.Q. This line of authority has not been called into question by the scholarly commentary.

The notion of “third person” under article 727 C.C.Q. must be interpreted uniformly throughout. There is nothing to justify setting aside the presumption of uniform mode of expression. The principle of protecting the testator, which underlies the reasoning adopted in Lemaine (Succession de) is just as relevant. Where a will is written by a third person who is named as a legatee therein, the risk of fraud or undue influence is assuredly reduced by requiring that the will be written by the testator or a disinterested third person. This is precisely why article 759 C.C.Q. states that a legacy made to the notary who executes a will is without effect.

The judge was wrong, however, to assert that the disinterestedness of the writer who is a third person is an essential condition of the will’s validity, implying that any will violating this could never be probated under the terms of article 714 C.C.Q. It is entirely possible for such a will to meet the first requirement of article 714 C.C.Q. This begs the question of whether, in light of the circumstances, the third person’s disinterestedness is essential to ensure that the stated objective is achieved, that is, to protect the testator from any risk of fraud or undue influence.  

Finally, in light of the circumstances in which the document was prepared and signed, the judge was right to conclude that it could not be unequivocally asserted with certainty that it contained the deceased’s last wishes.

Legislation interpreted: article 727 C.C.Q.

Text of the decision: http://citoyens.soquij.qc.ca