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Commentary on Drouin (Succession de) v. Lacasse – What matters most, form or substance?

Fasken
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Summary

Comments on a decision in which the Superior Court is apprised of a motion for the probate of a change to a will apparently signed by the testator and countersigned by witnesses.

Introduction

When trying to honour the true wishes of a testator after his or her death, it is accepted practice in actions seeking the probate and revocation of a will (theoretically, at least) to rely on the requirements of form. In some cases, however, certain decisions invoke form in an effort to “rationalize” the devolution of a succession instead of trying to ascertain the deceased’s intent.

In Drouin (Succession de) v. Lacasse (2012 QCCS 5533, EYB 2012-213597 (S.C.)), heard by Judge Dominique Bélanger, two heirs were claiming the effects of a testamentary change apparently signed before witnesses in which the deceased reduced a specific legacy shortly after he had signed his initial notarized will.

I– The Facts

On July 2, 2010, the deceased recorded his last wishes in a will that, among other things, bequeathed $50,000 to his ex wife by particular title.

Plaintiffs presented the court with a handwritten change to the will dated September 25, 2010, countersigned by two witnesses, reducing this legacy by particular title from $50,000 to $20,000.

The deceased then passed away on April 11, 2011.

After proof and hearing, the court reached a series of factual findings that cast doubt over the compliance with some requirements of form.

Despite what might appear from the document that was submitted to the court for probate (which is reproduced in its entirety on page 5 of the judgment), the court retained the following important facts:

  • The document was not signed by the testator on September 25, 2010, but on September 26, 2010; 
  • The witnesses did not sign on September 25, 2010, but on September 28, 2010; 
  • The deceased did not sign in Lévis, but in Venise-en-Québec; 
  • The testator did not initially sign the document before witnesses; he only added his initials in their presence; 
  • The signature does indeed belong to the deceased (admitted by the intervenor contesting the probate); 
  • It is not the deceased who drafted the document, but one of the two plaintiffs, who incidentally is the beneficiary of the change to the will.

On September 28, 2010, while the deceased’s wife was in the bathroom, the witnesses quickly signed a document presented to them by the person who had drafted it. This seems strange, since the wife neither stood to benefit nor to lose from the change. However, the two people who would have benefited were present both when the deceased signed the document, and then again when the witnesses signed.

The court notes that it received no evidence shedding light on the reasons why the deceased had made this change (par. 25).

II– The Decision

The issue here is over the application of articles 714 and 727 of the Civil Code of Québec, which provide the following:

714. A holograph will or a will made in the presence of witnesses that does not meet all the requirements of that form is valid nevertheless if it meets the essential requirements thereof and if it unquestionably and unequivocally contains the last wishes of the deceased.

727. A will made in the presence of witnesses is written by the testator or by a third person.

After making the will, the testator declares in the presence of two witnesses of full age that the document he is presenting is his will. He need not divulge its contents. He signs it at the end or, if he has already signed it, acknowledges his signature; he may also cause a third person to sign it for him in his presence and according to his instructions.

First, and rightly so, the court analyzed the application of article 727 C.C.Q. to determine whether the requirements of form had been met, before going on to consider the expediency of applying article 714 C.C.Q. to excuse any breach of form.

The court’s reasoning is contained in a mere two paragraphs:

[TRANSLATION]

[36] In and of itself, the document complies with the requirements of article 727 C.C.Q.

[37] Only after having heard the evidence did this Court realize that the document contains inaccurate information.

This reasoning leaves readers somewhat in the lurch, since it does not explain in any detail the court’s reasoning as to the requirements of form that were not complied with. What we are given to understand is that it is the presence of inaccurate information within the document submitted for probate is what constitutes a breach of form (par. 52). And yet, it is not clear from a reading of article 727 C.C.Q. that the authenticity of the information contained in a document is a requirement of form.

The court quickly moves on to its analysis of article 714 C.C.Q. Essentially, it is not convinced, from all of the evidence adduced, that the document does indeed contain the last wishes of the deceased, rendering this provision inapplicable.

III– Author's Comments

The court’s legal reasoning on the applicability of article 727 C.C.Q. is problematic, as it would appear from a reading of the decision that the plaintiffs did in fact meet their burden of proof when they demonstrated that:

  • the will was written by a third party; 
  • the testator acknowledged his signature in the presence of two witnesses of full age; 
  • the document was declared to be a will.

Interestingly, the court asked several questions that remain unanswered:

  • why have the date and place not been noted accurately; 
  • why did the testator want to change a legacy that was recently provided for in a notarized will without making any mention thereof to anybody; 
  • why was the change not notarized, too; 
  • why was the deceased’s new wife kept unaware of the change being made to the will, even though she had no interest in the matter.

Though it might be tempting, one must avoid the trap of trying to place itself in the mind of the deceased. According to article 727 C.C.Q., a testator does not need to justify himself or reveal the contents of his will to anyone, nor does he need to be “rational” in his testamentary provisions. This protects against the risk of substituting the will of the deceased and thus altering his last wishes.

What the court must do, in our opinion, is determine whether there is capacity, compliance with form and absence of undue influence (where applicable) without necessarily trying to understand the testator, who does not need to act like a “normal” person in order for his last wishes to be valid.

Not having had the opportunity to hear the evidence, those reading this decision are left assuming that the assessment of the testimony was the influencing factor. It is as though the judge sensed some form of undue influence or “suspicious circumstances,” but did not go so far as to explicitly state them in her reasoning. It would be regrettable, however, for these purposes or impressions to be used as justification for legal shortcuts. After all, as the saying goes, bad facts make bad law.

Conclusion

In closing, for the contents of a testamentary provision that stray from the norm to be recognized by the courts, it is important to pay particularly close attention to complying with the form that make wills valid, as any deviation could be used as a pretext to set aside testamentary provisions that are not “justified” in the eyes of the courts.

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