Mainville, Gagné, Beaupré

Appeal from a judgment of the Superior Court dismissing an application to contest an authentic act. Allowed in part.

Blanchet was the niece of Cécile Fournier, who died in February 2018, at age 99. Her last known notarial will is dated December 9, 2016, after she had become blind. There is an earlier will, however, signed on March 8, 2013, which benefits Blanchet rather than the respondent Bélanger.

Blanchet, now deceased, contested the validity of the December 2016 will as an authentic act. This will was read to Cécile by the notary in the presence of two witnesses, and she confirmed that it indeed contained her last wishes. The will contains the following closing phrase: [translation] “The undersigned officiating notary declares having read this will to the testatrix, who is blind, in the presence of witness ... This declaration was then read to the testatrix by the officiating notary in the presence of witnesses”.

The trial judge accepted that the formalities required by article 720 of the Civil Code of Québec (S.Q. 1991, c. 64) (C.C.Q.) for the will of a blind person were observed. According to him, the fact that the closing phrase states that Cécile signed the will when she did not is simply an [translation] “oversight” that he could disregard in accordance with Laprade c. Joumard (C.A., 1998-12-16), SOQUIJ AZ-99011129, J.E. 99-330.

An authentic will made before a notary, a public officer, is a solemn act and its formalities must be strictly observed. The judge erred in law by excluding from his analysis the formalities required by article 719 C.C.Q. regarding the signature of a testator who cannot sign. The closing phrase of the 2016 will meets the formalities required by article 720 C.C.Q. for the will of a blind person: the will is read by the notary to the testator in the presence of two witnesses, the notary declares having read the will in the presence of the witnesses, and this declaration is also read. However, this provision is not a general rule that encompasses and evades the situation of a testator incapable of signing covered by article 719 C.C.Q. Each article from 719 to 722.1 C.C.Q. applies to a specific and clearly identified situation and sets out special formalities in the case of testators who are potentially vulnerable for various reasons, which may be cumulative.

Since the testatrix was not able to sign the will, it was important to observe the formalities required by article 719 C.C.Q., which was not done. This omission deprived the will of its authentic nature. Laprade does not apply in this case. The unobserved formality was not [translation] “purely incidental”. Article 713 C.C.Q. also clearly provides that the sanction for failing to observe a formality is nullity of the act as a notarial act.

Although it does not fully comply with the formalities of a notarial will, as it fails to observe one, the 2016 will nonetheless essentially satisfies the conditions for a will made in the presence of witnesses under articles 727 to 729 C.C.Q. The judge in fact concluded that it faithfully reproduced the wishes of the testatrix and that it had sufficient guarantees of reliability. The will may therefore be validated as a will made in the presence of witnesses under article 713 C.C.Q. Indeed, what is “essential” within the meaning of article 714 C.C.Q. is based on a subjective analysis. In this case, the signature of the testatrix is not an essential formality. The objectives of the signing of the will, established in Gariépy (Succession de) c. Beauchemin (C.A., 2006-02-01), 2006 QCCA 123, SOQUIJ AZ-50354004, J.E. 2006-375, are met.

Legislation interpreted: articles 714, 719, and 720 C.C.Q.

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