Gagnon, Marcotte, Moore

Application for leave to appeal de bene esse, nunc pro tunc. Appeal from a judgment of the Superior Court dismissing an application to annul a will, in improbation and for damages and granting in part an application for a declaration of abuse and for reimbursement of extrajudicial fees. Allowed in part.

The appellant met Amos in 1980. She worked for him as his housekeeper. She was not paid but was housed and fed, under his roof. In 1984, Amos met the respondent, Ruby. A romantic relationship developed between them and she moved into his home in 1996.

In a notarial will signed in 2010, Amos appointed the appellant as the residuary universal legatee to his property. She was therefore to inherit his residence, among other things. Some legacies by particular title were left to the respondent Alfred, a friend, and to Ruby.

In March 2016, however, Amos took steps to change his will. He no longer wanted to leave his immovable to the appellant. On August 24, 2016, he was hospitalized following a fall. A notary went to the hospital to take his last wishes. He wrote a new will in which Amos appointed the respondents as residuary universal legatees and bequeathed $30,000 to the appellant, as a legacy by particular title. Amos signed the will from his hospital bed on September 21, 2016, the day before he died. The witness found by the notary was not present, however, for the reading of the will and its signature.

Disappointed that she inherited only a relatively modest portion of Amos’s estate, the appellant sued the succession and Amos’s heirs. She argued, in particular, incapacity, influence, and defects of form, specifically, the fact that the witness was not there when the will was signed and that the provisions of article 720 of the Civil Code of Québec (S.Q. 1991, c. 64) (C.C.Q.) concerning a blind person’s will had not been followed.

The trial judge dismissed the allegations of incapacity and influence, which she declared abusive, and the application in improbation, which had not been brought within a reasonable time. She awarded the respondents $10,000 in damages.

The appellant immediately appealed from one application that was declared abusive (the one concerning the nullity of the will due to influence), but the overall appeal must be subject to leave under article 30(3) of the Code of Civil Procedure (CQLR, c. C-25.01). Applying the criteria for leave to appeal nunc pro tunc leads to the conclusion that it is appropriate to refuse leave to appeal, except on those interrelated issues concerning the admissibility of the improbation and the validity of the will with respect to its form. The other grounds (capacity to make a will, influence, and declaration of abuse) do not raise any question of interest and are bound to fail.

The judge erred by refusing to analyze the application in improbation. The requirement that the application be brought within a reasonable time is only to ensure that the notary and all parties be duly informed of the upcoming debate. This objective was achieved here because the allegations in the originating application already referred to the defect of form and the notary was already an impleaded party.

Finally, the will does not comply with the formalities of a notarial will set out under articles 716 and 717 C.C.Q. because the witness was not present when the testator declared that the act read contained the expression of his last wishes and signed it. The instrument falsely claims that this essential condition was fulfilled. The improbation must therefore be granted.

The will loses its authentic nature, but it is valid as a will made in the presence of witnesses. Article 714 C.C.Q. applies to notarial wills. In this case, the will unquestionably and unequivocally contains Amos’s last wishes. Furthermore, the presence of a second witness would have added nothing to attest to the testator’s capacity and last wishes. All those who testified claimed that he was alert on the day he signed.

The appeal is therefore allowed in part for the sole purpose of declaring the authentic act improbate, declaring the will valid as a will made in the presence of witnesses, and to amend the time within which the appellant must move out of the immovable.

Legislation interpreted: articles 30(3) C.C.P and 714 C.C.Q.

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