deceased 1890
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INTRODUCTION ............................................................................................................................................................................3 TOPIC 1: LEGAL INSTITUTIONS AND ACTORS ......................................................................................................................................... 3 Successions ....................................................................................................................................................................................... 3 Gifts .................................................................................................................................................................................................. 4 Trust (a.1120-a.1171)....................................................................................................................................................................... 5 Substitutions (a.1218-a.1255) .......................................................................................................................................................... 5 Usufruct (a.1120-1171) .................................................................................................................................................................... 6 Remillard v. Couture, 1955, C.S. ....................................................................................................................................................................... 6 Pesant v. Pesant, 1934, SCC .............................................................................................................................................................................. 6 Sir William Lindsey-Hogg v. Minister of Revenue Quebec, 1976, S.C. .............................................................................................................. 6 Rosanna Seaborne Todd v. Bridgette Bartlett Todd, 1989, CA ......................................................................................................................... 7 Magnan v. Compagnie Trust Royal, 2006 ......................................................................................................................................................... 8 TRANSMISSION AND TRANSFER OF ASSETS AND DEBTS ..................................................................................................9 TOPIC 2: WHO HAS THE BEST PRIMA FACIE TITLE TO THE ESTATE OF A DECEASED PERSON? .................................................................. 9 Quebec Act ..................................................................................................................................................................................................... 11 Coutume de Paris............................................................................................................................................................................................ 13 Quebec Act, 1774 ........................................................................................................................................................................................... 13 Statutes of Lower Canada 1801 ...................................................................................................................................................................... 13 First Part Title First of Successions .................................................................................................................................................................. 13 Liquidation and Partition of Successions a.776-898 ...................................................................................................................... 14 Margulis v. Royal Trust , 2006, CQSC .............................................................................................................................................................. 16 TOPIC 3: LIMITATIONS ON FREEDOM OF WILLING ............................................................................................................................... 16 OK McMurray, Modern Limitations on Liberty of Testation ........................................................................................................................... 16 Lamarche v. Widholm, 2002, CA ..................................................................................................................................................................... 21 Roy v. Bedard, 2001 ........................................................................................................................................................................................ 23 Dusseault v. Choiniere .................................................................................................................................................................................... 23 Case: 1991, Droit de Famille, 1402, Superior Court ........................................................................................................................................ 24 Droit de famille 1579, 1992, Superior Court ................................................................................................................................................... 24 D’Anjou v. Lecompte, 1995, Court of Appeal of Quebec ................................................................................................................................ 25 Droit de famille - 2136, Superior Court of Quebec, 1995 ............................................................................................................................... 26 Droit de Famille 2310, Superior Court of Quebec, 1996 ................................................................................................................................. 27 Droit de Famille, 2310, 1997 ........................................................................................................................................................................... 27 Droit de Famille -2866, 1998, CS ..................................................................................................................................................................... 28 Droit de Famille - 3083, 1998, CS .................................................................................................................................................................... 29 TOPIC 4: TRANSFERS INTER VIVOS & CONTRACTUAL APPOINTMENTS: PRESENT PROPERTY/FUTURE PROPERTY ................................. 29 Dorval v. Prefontaine, 1905, appeal ............................................................................................................................................................... 31 Lemieux v. Lindsay-LTEE, 1926 ....................................................................................................................................................................... 32 GB Ciot Cie LTEE v. Bowes, 1961 ..................................................................................................................................................................... 32 Droit de Famille -1818, 1993, CS ..................................................................................................................................................................... 33 D.F. v. F.T., 1987, CA ....................................................................................................................................................................................... 33 Droit de Famille - 3194, 1998, CA ................................................................................................................................................................... 34 Droit de Famille - 2440, 1996, CS .................................................................................................................................................................... 35 Labadie v. Labrecque, 1981, CA ...................................................................................................................................................................... 36 Bergeron v. Beauchesne, 1988 ....................................................................................................................................................................... 37 THE BENEFACTOR (DONORS, TESTATORS, SETTLORS) ...................................................................................................................... 37 TOPIC 5- GIFTS DURING MORTAL ILLNESS .......................................................................................................................................... 37 Pesant v. Pesant, 1934, SCC ............................................................................................................................................................................ 37 Elizabeth Sapatos v. Mike Sabator, 1982 ........................................................................................................................................................ 37 TOPIC 6 – TESTAMENTARY CAPACITY ................................................................................................................................................. 38 Bertrand v. Operation Enfant Soleil (cited in Benoit)...................................................................................................................................... 41 Riportella c. Gaudreault-Houle ....................................................................................................................................................................... 42 Charbonneau (pg. 52) ..................................................................................................................................................................................... 42 McEwen v. Jenkins [1958] S.C.R. 719 .............................................................................................................................................................. 43 Gold v. Gold [1963] C.S. 45 ............................................................................................................................................................................. 44 1 Yared v. Zigayer [1958] B.R. 198 ..................................................................................................................................................................... 45 M(J) v. R(J) J.E. 94-598 .................................................................................................................................................................................... 46 McEwen v. Jenkins, 1958 ................................................................................................................................................................................ 46 Gold v. Gold, 1963, CS..................................................................................................................................................................................... 46 Yared v. Dame Zigayer, 1958 .......................................................................................................................................................................... 47 M(J) v. B(J), 1994, CS ....................................................................................................................................................................................... 48 99-434, CA ...................................................................................................................................................................................................... 48 TOPIC 7: OUTSIDE INFLUENCE ............................................................................................................................................................. 48 Stoneham and Tewkesbury v. Ouellet, 1979, SCC .......................................................................................................................................... 48 2000-1378, CS ................................................................................................................................................................................................. 49 THE BENEFICIARY: LEGATEES, DONEES AND OTHER RECIPIENTS ...................................................................................................... 50 TOPIC 8 - CIVIL EXISTENCE (A.617-624).............................................................................................................................................. 51 Manoli v. Canada, 1994, CS............................................................................................................................................................................. 53 3. Unincorporated Associations ...................................................................................................................................................................... 54 Prince Consort Foundation v. Helene Blanchard, 1991, CA ............................................................................................................................ 54 Fourmier: QCCS4473....................................................................................................................................................................................... 55 4. Future legal persons ................................................................................................................................................................................... 55 Dame Lyman v. Royal Trust Company, 1916, CS ............................................................................................................................................. 55 TOPIC 9: FUTURE LEGAL PERSONS....................................................................................................................................................... 56 Tucker v. Royal Trust Company, 1982, SCC ..................................................................................................................................................... 60 Royal Trust Corporation of Canada v. Webster, 2000, CS ............................................................................................................................... 61 Guy Fortin, How the Province of QC Absorbs the Concept of Trust ............................................................................................................... 63 The Quebec Law of Trust ................................................................................................................................................................................ 65 Roy v. Bagnoud, 2005, CA ............................................................................................................................................................................... 67 Norberg decisions (SC, 2006 and CA, 2007; SCC leave to appeal) .................................................................................................................. 67 Suzanne Pacini v. Talpis .................................................................................................................................................................................. 68 TOPIC 10: POWERS OF APPOINTMENT .................................................................................................................................................. 68 Ross v. Ross, 1896, SCC ................................................................................................................................................................................... 70 Dore v. Brosseau, 1904, CA ............................................................................................................................................................................. 71 Constant v. Mercier, 1890, CS ......................................................................................................................................................................... 72 Brodie v. Royal Trust, 1990, CA ....................................................................................................................................................................... 72 Re Nicholls, 1987, CA, Ontario ........................................................................................................................................................................ 73 Trust General du Canada v. Poitras, 1998, SC ................................................................................................................................................. 74 TOPIC 11: PURPOSE TRUSTS ................................................................................................................................................................. 76 Also see Ross v. Ross ....................................................................................................................................................................................... 76 Hastings v. MacNaughton, 1917 ..................................................................................................................................................................... 76 Valois v. de Boucherville, 1929 ....................................................................................................................................................................... 76 Fleury v. Trust General, 1980, SC .................................................................................................................................................................... 78 Couture v. Roy, 1995 ...................................................................................................................................................................................... 78 TOPIC 12: VARIATION OF TRUSTS (MODIFYING TRUSTS)..................................................................................................................... 79 Marmet v. Marmet, 1999, CS.......................................................................................................................................................................... 80 Stevenson v. National Trust, 1995 .................................................................................................................................................................. 82 Social Utility Trusts ......................................................................................................................................................................... 83 Pringle v. Anderson, 1914, Court of Review ................................................................................................................................................... 84 National Trust v. Northside United Church, 1994, ON Court of Justice .......................................................................................................... 84 In the matter of the estate of the late Donald Speirs Dufty v. Raymond Chabot, Inc. 2001, CS ..................................................................... 84 TOPIC 13 - RULES OF LEGAL DEVOLUTION .......................................................................................................................................... 85 FORMALISM AND FORMALITIES ...................................................................................................................................................... 89 TOPIC 14: FORMS OF OSTENSIBLE GIFTS ............................................................................................................................................. 89 TOPIC 15 - INDIRECT AND DISGUISED GIFTS ........................................................................................................................................ 90 Francois Terre & Yves Lequette, Droit Civil ..................................................................................................................................................... 91 Succession Meighen and Reford and Royal Trust Company of Canada .......................................................................................................... 92 Boucher v. St. Germain, 1933 ......................................................................................................................................................................... 92 Mallarte v. Decary, 1932 ................................................................................................................................................................................. 92 Frederik Sparling v. Canada Permanent Trust Company, 1986, CS ................................................................................................................. 93 2 Charlebois v. Charlebois, 1974, CA ................................................................................................................................................................. 93 TOPIC 16 - FORMS OF WILLS ................................................................................................................................................................ 93 Notarial Will a.716-725 .................................................................................................................................................................. 94 Holograph Will................................................................................................................................................................................ 95 Witness will (727-730) .................................................................................................................................................................... 95 Appreciation of the Three Forms .................................................................................................................................................... 96 Dansereau v. Berget, 1951, SCC ...................................................................................................................................................................... 98 Molinari v. Winfrey, 1961, SCC ....................................................................................................................................................................... 99 Jacques v. Allain-Robitaille, 1978, SCC .......................................................................................................................................................... 100 Bissonnette v. Bissonnette, 1984 .................................................................................................................................................................. 100 TOPIC 17 - PROBATE .......................................................................................................................................................................... 101 Article 714 .................................................................................................................................................................................... 101 Jacques Beaulne, Article 714 CCQ Huit Ans Plus Tard: Erreur du Legislation ou Egarement des Tribunaux? ............................................... 103 Fontaine v. Poulin, 1998, SC ......................................................................................................................................................................... 106 Poulin v. Fontaine, CA, 2000 ......................................................................................................................................................................... 108 Paradis v. Groleau, 1999, CA ......................................................................................................................................................................... 108 Poulin v. Duchene, CA, 1999 ......................................................................................................................................................................... 109 Gariepy v. Beauchemin, 2006, CA ................................................................................................................................................................. 110 Probate: Form (a.772 and following) ........................................................................................................................................... 111 Poulin v. Deschamps, 1996 ........................................................................................................................................................................... 112 Dugas v. Amiot, 1929, SCC ............................................................................................................................................................................ 113 RE McCabe: Kelly .......................................................................................................................................................................................... 114 Dans L’Affair de: Dame Aline Brien, 1997, CS ............................................................................................................................................... 114 Dans L’Affaire de la Succession de: Almond ................................................................................................................................................. 115 Cabba v. Valceaunu, 1999, SC ....................................................................................................................................................................... 115 VI. CONTENTS OF TESTAMENTARY DISPOSITIONS ......................................................................................................................... 117 TOPIC 18 - TYPES OF LEGACIES ......................................................................................................................................................... 117 Carter v. Goldstein, 1921-22 ......................................................................................................................................................................... 119 Dame Glass v. Dame Glass, 1969 .................................................................................................................................................................. 119 Labbe v. LaFlammme, 1997, SC .................................................................................................................................................................... 120 Blanchette-Miller v. Brochu, 2000, CS .......................................................................................................................................................... 121 TOPIC 19 - LEGITIMACY OF DISPOSITIONS AND CONDITIONS ............................................................................................................. 122 G. Champenois, Annotation of Tribunal Grand Institution Paris .................................................................................................................. 124 Canada Trust v. Ontario Human Rights Commission, 1990, ON CA .............................................................................................................. 124 Re Wishart Estate, 1992, N.B.Q.B ................................................................................................................................................................. 124 Central Guaranty Trust Company v. Lefebvre-Gervais, 1992, CS .................................................................................................................. 125 Cardone v. Iammatteo, 2002, CS .................................................................................................................................................................. 126 TOPIC 20 - INTERPRETATIONS OF LIBERALITIES ................................................................................................................................. 126 Lord Buckmaster ........................................................................................................................................................................................... 127 Leclerc v. Lafrance, 1999, SC ......................................................................................................................................................................... 127 Nixon v. Pinelli, 2000, CA .............................................................................................................................................................................. 128 INTRODUCTION Topic 1: Legal Institutions and Actors Successions - allocation or devolution of wealth upon death - opens on death (a.613) 3 613. The succession of a person opens by his death, at the place of his last domicile…devolves according to the prescriptions of law unless the deceased has, by testamentary dispositions, provided otherwise for the devolution of his property. - intestate o liquidator is all of the intestate heirs o governed by (a.653-683) a. 653: a succession devolves to the surviving married or civil union spouse and relatives of the deceased, in the order and according to the rules laid down in this Title. Where there is no heir, it falls to the State. - testamentary o expresses the intention of the deceased o legatees will receive all title or a particular part Definition of will a.704: unilateral act, revocable, testator disposes by liberality of all or part of property, takes effect on death, formalistic a.706: cannot renounce right to make a will in a marriage contract or to revoke testamentary disposition Gifts Donations Inter vivos - gratuitous transfer effecting wealth transfer inter vivos - Constituant elements of the gift: o bilateral contract (a.1378) o transfer of property by gratuitous title o divesting of donor a.1806: donor transfer of ownership of gratuitous title to donee; can be inter vivos or mortis causa a. 1807: must have actual divesting … the donor actually becomes the debtor of the donee Can be subject to a term or that the transfer affects a certain and determinate property which the donor undertakes to acquire or a property determinate 1824: gift of movable or immovable property made by notarial act en minute, and shall be published except which where you have consent and delivery (don manuel). 1836. Gifts inter vivos may be revoked on account of ingratitude. - Similarities btw gifts and legacies: o gratuitous acts o Involve capable actors, expressing valid consent in relation to an object and have a cause (a.1371) o Susceptible modalities and serve as vehicle for the gratuitous trust o Subject to prescribed forms Gifts Mortis Causa 4 1808. … conditional on his death and takes place only at that time is a gift mortis causa. 1819. … null unless it is made by marriage or civil union contract or unless it may be upheld as a legacy. In a marriage contract the spouses may leave all property to each other upon death – marriage contract may function as a will called a “contractual appointment of a an heir” - Because this gift is assimilated to 613.2 it is regulated by some of the rules of wills. 613. Gifts mortis causa are, in that respect, testamentary dispositions. - Trust (a.1120-a.1171) - Imported the trust concept from CVL so some confusion - Tucker case important o “sui generis ownership” trust until 1994 o No titulary, but appropriate to a purpose - Trust is a patrimony by appropriation - not a legal person - Triangular relationship: settlor, trustee, beneficiary 1260. …the settlor, transfers property from his patrimony to another patrimony … which he appropriates to a particular purpose and which a trustee undertakes, by his acceptance, to hold and administer. 1261. … constitutes a patrimony by appropriation, autonomous and distinct from that of the settlor, trustee or beneficiary and in which none of them has any real right. 1262. - established by contract, by will, or by operation of law…it may also be established by judgment. Only right is a “creance” – personal claim Can be personal, private or social Terminate a trust has to be by court approval Has third party administrator May have encroachment on capital Substitutions (a.1218-a.1255) 1218. …person receives property by a liberality (gratuitous act) with the obligation of delivering it over to a third person after a certain period…established by gift or by will 1223. …the institute is the owner of the substituted property, which forms, within his personal patrimony, a separate patrimony intended for the substitute. - Essential elements: o 2 liberalities o Successive order of vesting over time o Charge to deliver once over - difference btw trust and substitution is that when the testator/donor gives the property in substitution he is giving ownership of the property to A who gives it to B who gives it to C - not absolute ownership in the sense that A or B cannot give it away gratuitously - forms a patrimony within the patrimony of the institute and then in the substitute - B becomes the institute vis- a-vis C - Cannot exist for more than 3 ranks/generations; here you have successive liberalities - A is the administrator 5 - encroachment on capital is allowed Usufruct (a.1120-1171) - Donor/testator gives all or part of his property to A and to B - A (usufruct) gets the use and enjoyment of property and B is the bare owner - concurrent liberalities - terminated by renunciation of usufructory - bare owner has the right to alienate but subject to the usufruct rights which cannot be prejudiced - may have an encroachment of capital provision for trusts - substitution: - usufruct cannot have an encroachment on capital b/c the bare ownership has been given to B Remillard v. Couture, 1955, C.S. - “ a cause de mort” - “in the contemplation of death” - A will is a gift upon contemplation of death because death itself will inevitably cause a situation whereby the person, who up to that moment enjoyed full ownership , will be forcibly divested of all his possessions and they will stand waiting for new possessor to come and take them away - They will be given to legal heirs - Law gives precedence to provisions of a will - Gift in contemplation of death cannot become effective until the death has occurred Pesant v. Pesant, 1934, SCC - cannot give a gift in contemplation of death Sir William Lindsey-Hogg v. Minister of Revenue Quebec, 1976, S.C. Issue: Was there the creation of a substitute? Reasoning: - point of a substitution is to conserve the patrimony - to keep the heritage within the family - in letting his children dispose liberally of their inheritance, it is clear that he was not using a substitution - can’t have a substitution when the testator has given the option of liquidating in the case of an emergency - have to look at the intention of the testator - the deceased named his wife usufruct - the revenue from capital is enough for his wife to live comfortably - he also wanted to protect his 2 daughters - gave his daughters the choice to decide was to do with the money by testament - the testator did not want to create a substitution - created a usufruct in favour of his wife and daughters Class Notes: - issue: whether this was a usufruct or a substitution? - Plaintiff was the child of the deceased daughter - Husband died and left the usufruct to his wife and supposedly left the bare ownership to his 2 daughter and one died before the mother and the minister levied the duties on the daughters estate basing itself on the fact that it was a usufruct and t/f it had entered the daughters patrimony on the father’s death - The son argued, it is a substitution, and that the property is with the institute (the mother) - Court held: 6 - o testator gave the power of appointment to his daughters which is the ability to indicate who would get the property on her death - what characterizes the substitution is that it is the testator that makes the will of the substitutes o testator had given a power of encroachment on capital which the judge said was incompatible with the notion of substitution - the daughter could not encroach upon the capital while the institute was alive o also cannot be a usufruct o held it was a usufruct conclusion should have been that it was a trust b/c during the whole time of administrator there was an executor in place when you have a third party administrator it is a characteristic of a trust substitution and usufruct have to do with ownership Rosanna Seaborne Todd v. Bridgette Bartlett Todd, 1989, CA Facts: - the mother of the appellant died in 1945 - the notarial will foresaw the creation of a trust divided in 2 equal parts - the husband would get the revenue from half and the 3 daughters would share the revenue from the other half - when the spouse died, their part was added to the part that the daughters received - it also says that the capital has to stay in the hands of the executors during their life and then and when they die should be distributed to their descendants in equal portion s as per the will - the daughters had a limited power of appointment - class was specified - problem was that Rosanna had no children and did not like her sisters so she decided to go to court and say it is not a trust, it is a substitution - she based her argument that in clause 4 the word ownership was used Issue: Is this a substitution or a trust? Reasoning: - Dissent (Chevalier) o Thinks it is 3 substitutions o I give bequeath to my executors and trustees and I give and bequeath the ownership to my said three daughters o It is clear that she wanted the ownership of the property to go to her daughters and the administration and management to be done by the executors o In her will, she outlines the responsibilities of the trustees Control of the property Divide property in 2 Give the net income to the husband while he is alive When they die, the heirs get the property o Have to look at the testators intention - have to read the instrument as a whole o If a clause is subject to two interpretations have to go with the one that has a positive effect o Have to go with the interpretation that makes the most sense as a whole o Cannot ignore article 4 o The institution of a trust would be totally useless in light of the fact that they includes a sentence in the will that said the trustee would have control over the property 7 - o The point of including the sentence had to be to draw a distinction btw the owner and the possessor Rothman (majority) o Agrees with the trial judge that the testator intended to create single trust as contemplated under a.981 o Three daughters do not receive any of the capital or have any power to administer the capital of the estate o Nor do they have any power to direct on their death the capital bequeathed to anyone other than there own children o Sees no inherent reason why the income beneficiary of a trust cannot be given a limited power if appointment of the kind that was given here and why the giving of such power of appointment would assume the beneficiary has ownership of the capital of the trust or why it would necessarily involve a substitution o Entirely consistent with idea of trust that the testator left to her daughters the right to income, left to her grand-daughters, the right to capital and granted executors and trustees the very broad powers of administration required to accomplish these goals o Testator expressed the clear intention to convey her property to executors and trustees in trust o Key distinction btw substitution and trust: the right of access to the property conveyed by the testator under the will and the power to administer and control that property despite the use of the word ownership Where the will gives the income beneficiaries no access to capital and virtually no powers of administration or control of the capital, as is the case here, and where it requires that the capital is to be administered by executors and trustees until it is finally distributed to the testator’s grand-children trust Finds it difficult to conceive of a substitution under which the institute does not actually receive or have control of the property conveyed by the testator (a.925 CCLC) Three daughters have not “received” property, they only receive the income Magnan v. Compagnie Trust Royal, 2006 Fact: - the will of Defunt contains some provisions which refer to the establishment of a usufruct - the heirs of Defunt concluded that the agreements were such that the qualities of the bare owner and the usufruct owner would be the same person - they want the trust company to liquidate the succession and to give it to the heirs - the trust company thinks that it is a trust and not a usufruct and t/f it needs the court to put an end to the trust if that is what they want to do Issue: Was a trust created by the testator? If so, does the court need to be an end to it? Finding: The court is of the opinion that the terms of the will are more compatible with the a trust than of a usufruct - court put an end to the trust Reasoning: - the testator gave a usufruct to Mme Magnan and the bare ownership to his sons - the trust is named executor of the will - a couple of months after the death of one son, Magnan enter into an agreement whereby she renounces her rights to the usufruct but only on the “actifs” not exceeding $300,000, so that that amount can be given by the trust in equal parts to the sons 8 - In 2005 Magnan renounced her right to the usufruct (a.1162) which provoked the reunion of the qualities of usufructury and bare owner in the same person (one brother died) The son gives her the condo in which she is living A trust can exist even in the absence of the word “trust” in the will In the will the possession and administration of the property of Defunt are implicitly conferred to a Trust for the duration of the usufruct Magnan is the beneficiary of the revenue and the son is the beneficiary of the capital Essential characteristic of a trust is that the administration of the property is separate from those who enjoy the property Convinced it was a trust - power give to encroach on capital on behalf of the usufructury and there was a third party administrator - Royal Trust so that court said renunciation was not sufficient - the only way to terminate trust was to have the court approve (a.1294) TRANSMISSION AND TRANSFER OF ASSETS AND DEBTS Topic 2: Who has the best prima facie title to the estate of a deceased person? 666. spouse and descendants the spouse takes 1/3 and the descendants 2/3. 667. no spouse the entire succession devolves to the descendants. 616. Where persons die and it is impossible to determine which survived the other… died at the same time if at least one of them is called to the succession of the other. The succession of each of the decedents then devolves to the persons who would have been called to take it in his place. Place of death - does not matter if you are traveling - still law of Quebec if you are vacationing in Florida - domicile (a.76 and following) - only have one - 2 elements: o factual o intentional 3098. Succession to movable property is governed by the law of the last domicile of the deceased; succession to immovable property is governed by the law of the place where the property is situated. However, a person may designate, in a will, the law applicable to his succession, provided it is the law of the country of his nationality or of his domicile at the time of the designation or of his death or that of the place where an immovable owned by him is situated, but only with regard to that immovable. How do we prove that death has occurred? - need an official proof of death - Act of death : only issued to persons who can establish their interest in obtaining such a document - Attestation of death - yes, the person died - Certificate of death - suffices for most purposes - only issued to persons who can establish their interest in obtaining such a document - If in some circumstances, you can go to court to obtain a declaratory judgment of death (a.92…) 9 4 questions: Who is entitle to possession of the of the deceased assets? To whom do the possible actors address themselves to obtain delivery? To whom do creditors address themselves to have satisfaction for their claims What is the asset basis upon which the claims of the creditors are satisfied? Analysis: - a.2 CCQ: every person has a patrimony - a.302: legal person has a patrimony - a.2645: persons patrimony is available to satisfy creditors - to the extent that you can have a patrimony by appropriation, creditors have no recourse - a.414: type of appropriation for the purpose of family patrimony - a.625, 614: represent the starting point and end point of examination of the transmission 614. In determining succession… all the property as a whole constitutes a single patrimony. 625. The heirs are seised, by the death of the deceased … of the patrimony of the deceased, subject to the provisions on the liquidation of successions. Historical Review - - Our law traces back to the CCLC to the Code Napoleonic, Roman law and customary law Principle of freedom of willing Customary system that prevailed in the pays du droit coutumier, Coutume du Paris Roman tradition, o intestacy was exceptional, only occurred in the absence of a will based on the notion of presumed affection of the deceased, closed in degree to the deceased would benefit - restriction on this - legitimate portion - portion of someone’s property on death that was reserved by legitimate heris recognized by the law o unity of patrimony: rules were the same for all kinds of property (a.614) Customary law o legitimate succession was the rule - it prevailed - legal heirs are seized of the property - a.318 of the Coutume de Paris - death seizes the person alive - meaning - continuity of the deceased in his heirs o plurality of masses of property: each class of property devolved according to certain rules origin and nature matters - some property would descend in paternal line and some in maternal line - preference also given to first born child Napoleonic Code - preference give to Roman tradition o Intestacy is exceptional (a.703 CCQ - preference is given to will and not to legitimate succession - we also have retained the maternal and paternal lines in intestacy when dealing with collaterals of the half-blood (fente). We have not given primacy to legitimate succession and we have not retained the reserve. We do not have forced heirship. o the notion of seisin was also retained 10 Quebec Act - principle of freedom of willing was introduced in QC - net effect of introducing the concept, was that it attributes the status, it gives prominence to the will 703. Every person having the required capacity may, by will, provide otherwise than as by law for the devolution upon his death of the whole or part of his property Seisin - Person of the deceased is continued in the heir - right of an heir to exercise effective possession - right to apprehend all of the property of the deceased w/o need of material apprehension or judicial approval - Seisin is deemed possession and control of the property - Exceptions: o surviving spouse could not be seized as an heir until 1915, the crown had to be put in possession of property and the testamentary had to obtain delivery from the legal heirs - when you read in 625 that the heirs are seised (CCLC), there are exceptional provision that suspend - CCQ: now there is a liquidator for every type of succession (under CCLC, could only be an executor if named in the will) 777. The liquidator has, from the opening of the succession and for the time necessary for liquidation, the seisin of the heirs and the legatees by particular title. - Liquidator has the effective possession and control of the property for a certain period of time - Heirs have legal possession (animus) which is suspended during liquidation - Who is entitled to possession? Liquidator during the time of liquidation of all property and after liquidation it is the heirs by general title - Creditors address themselves to the liquidators to satisfy claims but in terms of debt liability the notion of seisin is somewhat modified under the CCQ - separation of patrimony and limited liabilities: only be liable for the death of the deceased up to the amount that received from the deceased. 1441. Upon the death of one of the parties, the rights and obligations arising from a contract pass to his heirs, if the nature of the contract permits it. 625. The heirs are seised … of the patrimony of the deceased, subject to the provisions on the liquidation of successions. The heirs are not bound by the obligations of the deceased to a greater extent than the value of the property The heirs are seised of the rights of action of the deceased against any person or that person's representatives, for breach of his personality rights. Acceptance 630. Every successor has the right to accept or to renounce the succession. Option is indivisible. When you accept, you become an heir. 632. A successor has six months from the day his right arises to deliberate and exercise his option. The period is extended of right by as many days as necessary to afford him 60 days from closure of the inventory. 633. If does not renounce… presumed to have accepted unless the period has been extended by the court. 11 If a successor does not exercise his option within the time determined by the court, he is presumed to have renounced. 638. A succession devolving to a minor, to a protected person of full age or to an absent person is deemed to be accepted, except where it is renounced within the time for deliberation and option. 649. A successor who has renounced the succession retains the faculty of accepting it for 10 years from the day his right arose, if it has not been accepted by another person. - Rule of thumb: 6 months to do inventory and then you have 60 days to decide if you will accept or renounce. o During the period of deliberation, no one can take any action against you - Acceptance can be express or tacit - Tacit acceptance: question of fact and intention o if you begin to perform acts of heirship o transferring any rights that you may have o renunciation favourum: in order to save the succession duties o Exceptions which are not an act of acceptance: if you perform acts of administration to conserve the property insurance proceeds not part of the estate QPP (rentes de Quebec): if you accept these pensions, you are not deemed to have accepted the estate - Minor or under person under care: presumed acceptance - Effects of acceptance: retroactive effect - confirms the transmission which took place at death irrevocable, unconditional and indivisible - Renunciation: revocable subject to certain conditions (a.649) o only one form for renunciation - must be expressed by notarial deed (a.646) o presumed renunciations if you fail to act within the 6 months and 60 days o successor unaware of his status - prescription period - 10 yrs o a.651: forced renunciation 651: in bad faith, has abstracted or concealed property of the succession or failed to include property in the inventory is deemed to have renounced… o effects are retroactive - deemed never to have been a successor o prevents representation o if you deliberately decide not to accept and renounce, it has consequences, share of your cosuccessors increase, creditors of the successor can attack within one year Problem of the surviving spouse: CCLC problem: often a child would renounce and the mother would be the other heir Ex. Rosenbush v. Rosenbush, 1971: - Debate about the effect of renunciation and an attempt to retract - In this succession, deceased left a spouse (1/3) and son (2/3) - Son renounced - Deceased had a brother - The son renounced and then he decided to retract his renunciation Issue: When the son renounced, did the share go to the spouse or do we go down to the brother in the 2nd order? 12 Result: - Brother would get 1/3 and spouse 2/3 if this happened - Brother had not accepted the estate so the son could retract his renunciation - So the mother got 2/3 b/c she had accepted and he got 1/3 so his share was decreased - Had the brother accepted, the son would have been out of luck. Question: Shrek - Shrek Jr. renounced his right (a.630) but retains rights to retract for 10 yrs (a.649) unless it has been accepted by another person - Since Shrek renounced his right, his 2/3 automatically went to Donki who is deemed to have accepted since he is a minor (a.638) unless his mother expressly renounced his right - As a result, Shrek Jr. cannot get any share o Comment on rules of intestacies (1/3, 2/3), renunciation by notarial deed, comment that creditor could attack within 1 yr, Donki would not come to the estate by virtue of representation, Shrek Jr had an option for 10 yrs to retract, distinguish Rosenbush in the sense that Donki comes in his own right, Shrek Jr was deemed never to have been deemed an heir, deemed acceptance for minor a.638 and t/f Fiona get 1/3, Donki gets 2/3 and Shrek Jr gets nothing Coutume de Paris - not necessary to have in heir for the validity of a will - cannot be an heir and a legatee at the same time - the person closest to the deceased is the heir - ever person can create a will and dispose of their property - a husband cannot give away in his will stuff that belongs to him and his wife - in a will intestate, the kids get Quebec Act, 1774 - all people may hold property and may alienate property by will Statutes of Lower Canada 1801 An Act to explain and amend the Law reflecting last will and testament - every owner of land has right to alienate his property - may devise or bequeath by last will and testament - can favor husband, wife or kids or someone else - cannot give more than your share in such a way as to prejudice one’s spouse First Part Title First of Successions - succession is the transmission of property, rights and liabilities of a deceased person to one or more other persons - university of property, rights and liabilities which deceased person leaves - synonymous will inheritance, estate - two types: intestate and testamentary - an individual has one inheritance will all property included - used to be that the closest heir would get all the property but then it was decided that half would go to the paternal and half to the maternal heir 13 Liquidation and Partition of Successions a.776-898 - Purpose: to ensure protection for the heir and for the deceased creditors How liquidation happens: 776. The liquidation of an intestate or testate succession consists in identifying and calling in the successors, determining the content of the succession, recovering the claims, paying the debts of the succession, whether these be debts of the deceased, charges on the succession or debts of support, paying the legacies by particular title, rendering an account and delivering the property. - In order to ensure creditors claims are satisfied we have seisin which is exercisable during the period of liquidation; seizen may be modified by the testator or may be divided - Derogation from the formalities must be done by the heirs, liquidator cannot decide not to follow the formalities o no derogation if the testator has stated in his will that there must be an inventory and accounting done o no derogation if minors and incapable adults o derogation from the formalities can also be ordered by the court (a.835) 835. An heir having assumed payment of the debts … may move that the court reduce his liability or limit it to the value of the property he has taken… (implies good faith) Liquidator - all successions (intestate and testamentary) liquidator does not have to accept his role unless only one heir no insurance required and he is entitled to remuneration if he is not an heir - Who can act? o Any natural, capable person, over 18 can act o a.783: Requisite capacity o Can also be a legal person authorized by law - only legal persons in QC who can act are trust companies and banks unless operating through trust companies cannot act as liquidators - How are they appointed? 785. The office of liquidator devolves of right to the heirs unless otherwise provided by a testamentary disposition; the heirs, by majority vote, may designate the liquidator and provide the mode of his replacement. o a.785: by law heirs o a.785: by heirs o a.786: by testator (may be called executor or administrator) o a.791: Liquidator can be forcibly removed by the court 14 - - - - - - o a.788: by court, 791 o a.792: provisional liquidator Publication and designation of replacement o a.777 (3): Designation of the liquidator had to be published - amendment to o a.1335 Decisions o a.787: decisions must be unanimous, must act in concert Powers: o Simple admin 802 Forcible Removal o By the court a.791: if unable to assume his responsibilities of office, who neglects his duties or who does not fulfil his obligations. Powers: o Liquidators are subject to regime of Simple Administration (a.1301 and following) Powers of conservation, preservation Collects fruits and revenues, carry on the use and operation of property Make sound investments Cannot alienate or hypothecate property unless authorized by the heirs or the court Reality is most wills will give them full admin to allow flexibility - if they need to sell property to pay debts they don’t need to go to the heirs o Full Administration Regime (a.1306-1307) Acting as owner w/o any restrictions Preserve and make it productive Alienated and hypothecate w/o authorization Can make any form of investment o Both regimes as subject to (a. 1309): prudence, diligence and duty of loyalty to beneficiaries Mode of Exercise of Powers o obligation to attend to funeral is on the heirs but usually liquidator does it (a.42) o Liquidator applies to chamber de notaire for a certificate o Search for successors (776, 87) o If no will, you can look at the marriage contract Inventory: key obligation o done within 6 months of death (a.794, a.800. a.792) o The liquidator collects the various assets , may make conservative investments o May pay certain advances to heirs o If there are unpaid taxes, the tax man will go after the liquidator who will have to go after the heir t/f most liquidators should wait for clearance certificates o If a liquidator has to take a particular judicial proceeding, (poorly drafted wills) the liquidator is acting as “qualite” CCP must be represented legal council - need a lawyer - the liquidator fees must be borne by the estate Payment of debts: p.26 o universal legatee and general title liable for debts (a.625(2)) o particular legatee not liable in principle (a.739) - property names to PL will get sold last o Must proceed with payments of debts in 3 ways: Manifestly solvent (808) Pay creditors and legacies as they present themselves 15 - Creditors get paid first but in this case it does not matter because there is enough for everyone Not Manifestly solvent (810) You have to wait 60 days after you do your inventory and public notice before paying out Insolvent (811) More formalistic process - has to be a payment proposition drawn up o if there is no differentiation made in will, heirs get property equally in un-divided co-ownership no rule in favour of return in CCQ a.867 o Return means you as a successor to the estate must return to the mass of the succession any amount that you received by gift during the testators lifetime and any other loans/advances o Not applicable to post January 1, 1994 successions unless express obligation to return Margulis v. Royal Trust , 2006, CQSC - 2 people names as liquidator along with Royal Trust - did not want Royal Trust to act - royal trust did not want to step down - Interpretation says we shall act in concert unless exempted there from by the heirs so the heir say we are exempted you from acting - Prof thinks if 3 are named, they all have to act together and the heirs cannot change the will nothing in the will made an exemption or stipulated a majority - Will is the cardinal document - some exceptions to rule of unanimity: if you have particular liquidator named to particular property and they may act alone in urgent matters and to conserve property, can also delegate powers one to the other (a.1337) - can also delegate specific tasks to 3rd parties but cannot generally delegate admin to 3rd parties Topic 3: Limitations on Freedom of Willing OK McMurray, Modern Limitations on Liberty of Testation - will is by no means a universal institution - will is a modern institution - we can also see systems which act as a substitution for the will - China, Japan, ancient Egypt and the early Magryars illustrate this custom - have institutions wehre the purpose is the perpetuation of the personality of the deceased through the creation of artificial kinships - Usually the act of adoption in its earliest form is sanctioned by a general anachronism to speak of legislation in connection with assembly or by the members of the group - Institution of wills has been continuously remodeled to suit the varying conditions of society - Ex. England it was believed that man would die and come back to life so he divided his property into 3 parts - his wife, his kids and himself - Rules of inheritance soon became universalized - Law of 13th century was the fate of the legitime or reserve - permitted the testator to bequeath only a part of his movables to his, 1/3 if he left a wife and children - By statute this was changed and the principle of absolute liberty became a universal principle in English Law 16 - Codes of continental Europe in their adoption of their rule of equal division in the case of intestacy and in matter of reserve or legitime, present the greatest contrast to the English system - Restrictions are more or less extensive in favor of the family of the testator exist upon his unlimited power of will-making - Under the French civil code the testator may bequeath only one half of his property if he leave one children, 1/3 if he leave 2 and ¼ if he lives three Notes: - Discusses the various theories in justification of freedom of will - Comments on intestate as being the ultimate will substitute - Asks whether there should be freedom of will if there are spouse and kids - Legislation exempts certain property and legislation protecting women and children - Overriding principle is intention which allows for the fullest exercise of ownership in the form of willing or gifting - Conditions judicial interpretations - what was the testators intention and how do you determine it - Reform of CCQ, facilitative or enabling legislation and this is realized in the place that is given to holograph wills - Maximization of testators intention in purpose trusts General principle: intention of the disposing person is given paramount position in liberalities - a.703 & a.947: freedom of willing (animus testandi) and freedom of giving (animus donandi) Restrictions: 1. Creditors claims 1) Depends on the regime of transmission: Mortus causa: subject to liquidation regime (a.776), liability for debts Gifts and trust (a.1631): in principle not liable since property and not patrimony is transferred - exceptions 1821 and 1830; Publication requirement for gifts (1824) 1214-15 stipulation of alienability - can stipulate in a gratuitous act that property is not to be alienated for a period of time and if so this property also benefits from unseisability by creditors 2649: in order to be valid stipulation must be in a gratuitous act and must be justified by a legitimate reason and it must be published in the appropriate registers and it is subject to the provisions of seizability CCP 2. Rule of intestacy (may defeat real intention) o Surviving spouse and adoptees, illegitimate children o If you want to exclude any of these people, you would have to explicitly state it 3. Surviving spouse entitlements (applicable to married and civil union spouses) If a spouse dies, a. you must first settle the claim of the surviving spouse for the family patrimony - FP is dealt with first b. Then the matrimonial regime (MR) - balance of the assets - are dealt with c. Once that is settled, then you can determine the contents of the estate d. Once you have the estate, you deal with the other claims - creditors, etc. 17 o only intestate in 1915 o entitlements are a restrictions on testamentary freedom o spousal entitlements can arise from many sources in the law: matrimonial regimes: spouse may take under the matrimonial regime and under the rules of intestacy o community of property: the surviving spouse is entitled to 1/2 of the community and the other half belongs to the succession of the deceased property - husband is the administrator of property (492) o partnership of acquests: legal regimes imposed by the law - not a regime that gives proprietary rights, it is a value added regime; when it ends there is private property (what you bring into the marriage) and what is called acquests (what you acquire after the marriage and you divide only the acquests) (448) o separation as to property: stipulated in a marriage contract. Allows the spouses to choose separation of property in a marriage contract. (431, 485) gifts IV or MC: o marriage K (1839-41) Compensatory allowance: Applicable to civil union spouses Spousal contribution to accumulated wealth gives rise to post mortem claim at a.427 - based on principle of unjust enrichment Family patrimony Applicable to legally married and civil union spouses Based on joint economic effort for the constitution of family assets Conveys no real rights - gives a right to claim What you inherit or receive by gift are excluded from family patrimony (a.415) Public order regime Cannot opt out of family patrimony Applicable to all Quebec residents married after July 1, 1989 and to those married before this date who did not renounce to its application prior to January 1, 1991, unless divorce or separation proceedings were initiated prior to May 15th, 1989 QC pension plan is also excluded Some pension in which a wife is given a right on death, it would be excluded Property devolving by succession or gift is excluded (a.415) Prescription for renunciation: 1 year (a.423(2)) Problem Areas: o Are the family patrimonial rights or right to partition transmissible upon death to the heirs of the deceased spouse? SH v. BBF o Is it an effect of marriage or is it a type of matrimonial regime? Lamarche v. Widholm; BNC v. Successon de Trapani Spouses right to partition of the family patrimony is transmissible and be exercised by heirs or the creditors of that spouse. a. 416: dissolution of the marriage be death is one way that a claim to family patrimony arises 18 Transmissibility is the rule and non-transmissibility is the exception and must be clearly stated See summary for reasons(p.35-36) for and against Transmissibility is the general rule and non-transmissibility is the exception Dissenting opinion: p.37: right is attached to the person and is thus non-transmissible o Cumul: means an accumulation of rights Roy v. Bedard o Is a legacy which is conditional upon renunciation to partition family patrimony against public order? Succession Choiniere Not against public order to attach a condition to the legacy Court looked at two types of public order provisions Only when the right arise can the renunciation take place court held that the right to claim an alimentary obligation is a public order right and cannot be renounced - drafting techniques were proposed to safeguard claims: o give all the family patrimony rights to the spouse by particular legatee will can always be revoked, spouse may renounce the legatee and spouse may renounce the spouse will be both creditor and debtor and thus the other heirs will have no rights o attach the condition of renunciation to any benefit left to the spouse - if they want to take under the will, they renounce, if they don’t want to take under the will, they don’t renounce to the family patrimony - way of preventing cumul o make an irrevocable gift of the family patrimony rights in a marriage K problem irrevocability downside is that if things change o when there was a debate about transmissibility, courts were effected by inequities - courts tried to get around non-transmissibility - Hopkinson v. Royal Trust: court applied the rule on unequal (a.422) - court can impose an unequal discretion 422. The court may, on an application, make an exception to the rule of partition into equal shares, and decide that there will be no partition of earnings registered pursuant to the Act respecting the Québec Pension Plan or to similar plans where it would result in an injustice considering, in particular, the brevity of the marriage, the waste of certain property by one of the spouses, or the bad faith of one of them. - Prescription to renounce is within 1 yr by notarial deed 4. Post-mortum obligations: Alimentary Obligations (a.684-695) Who can claim? 585. Married or civil union spouses, and relatives in the direct line in the first degree, owe each other support. Prescription period? 684.: within six months after the death claim a financial contribution from the succession as support. The right exists even where the creditor is an heir or a legatee by particular title or where the right to support was not exercised before the date of the death, but does not exist in favour of a person unworthy of inheriting from the deceased. 19 Former spouse? 685. The contribution is made in the form of a lump sum payable in cash or by installments. The contribution made to the creditors of support, with the exception of that made to the former spouse of the deceased who was in fact receiving support at the time of the death, is fixed with the concurrence of the liquidator of the succession acting with the consent of the heirs and legatees by particular title or, failing agreement, by the court. - Prior to the intro of these provision in ’89 alimentary claims were extinguished by death (purely personal obligation) - It does not survive death - it has to be activated - it is not an automatic right - the creditors must make their claim within 6 months (a.684) has to be done by legal proceedings - a.685: class of people who may claim: legal or civil union or former spouse and the children and the parents, descendants and ascendants but only to the first degree - one condition: former spouse is treated differently than actual spouse; FS must be someone who at the time of death was receiving support - in order to claim, you cannot be unworthy of inheriting - you may also be an heir or a particular legatee h/w be careful of the fact that one has the status of heir (a.685) - former spouse, the amount is set no criteria a.688 (12 months support or 10% of the value of the succession) Conditions for support? 686. In fixing the contribution: the needs and means of the creditor of support, his circumstances and the time he needs to acquire sufficient autonomy… Account is also taken of the assets of the succession, the benefits derived from the succession by the creditor of support, the needs and means of the heirs and legatees by particular title… 687: also consider, the value of the liberalities, act inter vivos during the three years preceding the death... Contribution? 688. The contribution…may not exceed the difference between 1/2 of the share he could have claimed had the entire succession, including the value of the liberalities, devolved according to law, and what he receives from the succession. The contribution granted to the former spouse is equal to the value of 12 months' support, and that granted to other creditors of support is equal to the value of six months' support; however, in neither case may such a contribution, even where the creditor was in fact receiving support from the deceased at the time of the succession, exceed the lesser of the value of 12 or six months' support and 10 % of the value of the succession including, where that is the case, the value of the liberalities. Private International 3094. The obligation of support is governed by the law of the domicile of the creditor. However, where the creditor cannot obtain support from the debtor under that law, the applicable law is that of the domicile of the debtor. If the claimant lives in QC and the deceased lives in ON, the claimant should claim in ON De Facto Spouses - The only relief given in QC for a de facto spouse 3 options: o enter into a cohabitation K to provide for similar rights, 20 o action based on pro socho recourse for an implied partnership (tacit partnership) - not an easy recourse to succeed with have to show a common fund was created and each contributed that there was a sharing of profits and losses and there was a genuine attempt to form a partnership, o claim based on unjust enrichment (a.1493-96) - allows for compensatory allowance but does not grant an award for property - not transmissible to the heirs of the deceased spouse - personal right extinguished on death Lamarche v. Widholm, 2002, CA Facts: - woman dies before her divorce is final and she leaves her property to the man she is living with - he is the legatee. Issue: Are family patrimony rights transmissible. Held: Yes, (strong dissent). The right of a spouse to the family patrimony is a personal right which is transferable to the heirs of the deceases spouse. Reasoning: - have to ask if the patrimonial right is transmissible Dissent - right of partition is a rights as between the spouses and is not transmitted to the heirs of the deceased spouse - in putting into place the family patrimony, the legislator did not want to help the creditors of the spouse who are not owners of the property that constitutes the family patrimony o the right to partition in a family patrimony is transmissible and t/f it can be exercised by the creditor of the spouse to which the other is liable, therefore it follows that spouse creditor cannot renounce to the partition - The legislature did not want, in the case of a legal separation, that there could be the destruction of the family patrimony, based on the claim made by and in favour of a creditor, against the will of the spouses - The spouse asking for the separation leaves the spouse and kids but for one reason or another does not ask for a partition - It is obvious that under these circumstances, the legislator did not intend that the creditors of the spouse who asked for the separation be able to force the sale of the family residence - The institution of the family patrimony is a “prestation compensatoire legal - Enrichment/impoverishment - the person who has been enriched by the other at their expense, owes the other person - this is characterized as a personal extra-patrimonial right and will not be transmitted to heirs - The right of partition is intimately linked to the spouses and cannot be transmitted to heirs and cannot be exercised by creditors - a.416 - Family patrimony protects the spouse who contributed to the acquisition of the family patrimony and in whose name were the property not named - The right of the surviving spouse to renounce his/her right to partition of the family patrimony is expressly foreseen; if the renunciation by the heirs of the deceased spouse is not foreseen, with respect to them there is nothing to renounce. 423. The spouses may not, by way of their marriage contract or otherwise, renounce their rights in the family patrimony. One spouse may, however, from the death of the other spouse or from the judgment of divorce, separation from bed and board or nullity of marriage, renounce such rights, in whole or in part, by notarial act en minute; that 21 spouse may also renounce them by a judicial declaration which is recorded, in the course of proceedings for divorce, separation from bed and board or nullity of marriage. - Heirs do not have a right in partition of a family patrimony because they have no right to the patrimony at all - The transmission of the right to partition would create an inconsistency with the rule that there is no absolute right to transmission of acquests(to heirs) - A.415 CCQ: favours the surviving spouse against 3rd parties - The surviving spouse has to conserve the maximum resources by opposition of 3rd parties - a.416: at the time of the death of the debtor spouse, the creditor spouse has a right to 50% of the value of the family patrimony registered in the name of the deceased spouse - the intuiti personae characteristic of the right to share the family patrimony Majority (Biron) Issue: Transmissibility of the claim of the deceased spouse in the family patrimony. Do the heirs of the deceased spouse have the right of this claim or can they be given their claim eventually? - In the case of death, the right to share does not only belong to the surviving spouse - Where the right to share opens by the death of one of the spouses, only the surviving spouse can ask for the partition of the family patrimony and to reclaim that claim that they have a right to in the case where the spouse has more stuff - Based on the jurisprudence, it seems that once the marriage is ended, the right of partition of the family patrimony opens and by virtue of a.416 - The transmission of a claim is the rule and the intransmissibility is the exception which must be expressly made - Doctrine o Ciotola: right to family patrimony is a patrimonial right that is transmissible for each spouse and which crystallizes at the moment of ending of the marriage o The right which is given to the spouses, is also given to their heirs a.416: the value of the family patrimony of the spouses… is equally divided between the spouses or between the surviving spouse and the heirs, as the case may be. o Family patrimony regime does not have the same effects as regime of acquests a.473 o A.423: the debtor spouse can certainly not renounce to their debts - believes the intention of the legislator was to allow the right of partition to be transmissible - according to the thesis of inadmissibility, the heirs who continue the personality of the deceased do not have the same rights as the surviving spouse - according to this, if the value of the property of the deceased spouse in the family patrimony is higher than that of the surviving spouse, the surviving spouse has a right to get half of the surplus of the value, but in the reverse situation, where the surviving spouse has more money, the deceased spouse and their heirs, have a right to nothing - once you divide the family patrimony, if the spouse who has a right to a compensatory payment is alive, that spouse gets paid - if the spouse is dead that spouses heir do not have a right to get paid (according to the intransmissibility theorists) - if this was the intention, the legislator would have made it clear - article 416 is a strong indication that the legislator did not want to derogate from the general rule - they would not have included death of a spouse in the article, if they had not intended that the heirs would have a right - right to family patrimony is not a real right, but it is a person al right or a right to claim 22 Roy v. Bedard, 2001 Facts: - husband dies intestate - wife and 2 kids are left - RRSP are left specifically to the wife - The liquidator, Roy, - By law, RRSP, are in the family patrimony Issue: Does the spouse, the legatee of the RRSP, have a right to reclaim to the succession of the deceased spouse, in addition to the RRSPs, half of the family patrimony? Is the right to a share in the family patrimony transmissible? Reasoning: The Law - property from the family patrimony given to one spouse - has to be excluded from the calculation - but the court finds otherwise - Bedard has not renounced to her right to share - Legislator wanted to ensure the minimum security for the spouses but no where does it prohibit giving more security - Have to proceed to sharing the patrimony by including the RRSPs of the deceased and then the liquidator has to respect the wishes of the deceased to dispose to particular legatees - giving the RRSPs to the wife - Right to a share in the family patrimony is not transferable to the heirs following the death of a spouse the surviving spouse holds that right Dusseault v. Choiniere Facts: - husband dies and leaves a bunch of things to his wife on condition that she renounces her rights to the family patrimony - he also leaves some things to his kids Issue: - Is this condition against public order and thus null and invalid? Held: The condition is not impossible or contrary to public order since she still has the option of getting her share of the family patrimony if that is more profitable to her. Reasoning: - distinction btw public order of direction (impossible to renounce) and public order of protection (impossible to renounce in advance) - the party that benefits from the protection of a rules of public order of protection an renounce that right - but his renunciation cannot be anticipated it can only take place once the right is accorded - the surviving spouse would first get the claim born from the family patrimony by title of a creditor of the succession and then would get the legatee if of the property in the family patrimony if the succession was properly liuidiated - family patrimony limits liberty to create a will b/c it is a regime of public order - it is possible to renounce the rights only once the right is born 423. The spouses may not, by way of their marriage contract or otherwise, renounce their rights in the family patrimony. 23 - The right to create a will cannot modify the final results of the calculation of the claim of each spouse of the patrimony The wife still has the option of getting the family patrimony divided if that is was would be most profitable to her Case: 1991, Droit de Famille, 1402, Superior Court Facts: - the plaintiff is asking for a financial contribution by title aliment of the succession of her father - she is not an heir of a legatee - her mother died in 1977 and she lived with her father until his re-marriage to another widow at which point when he died he left everything to his new wife - when he got re-married, her father gave her a bunch of furniture to help her set up her apartment - she worked until she got pregnant and had a little girl who is now 8 - she gets child support payments from the girls father of $25 a week - she works as a waitress and makes $250/week - she had good relations with her father until his death and often helped him out - she never asked her father for child support even when she was in need - she is basing her claim on CCLC a. 607 CCLC 607.1. Every creditor of support may within six months after the death claim a financial contribution from the succession, whether abintestate or testamentary, as support. The right exists even where the creditor is an heir or legatee or where the right to support was not exercised before the date of the death, but does not exist in favour of a person unworthy or inheriting from the deceased. - The right has to have existed before death and the plaintiff has to be a creditor Issue: Does she have a right to support? Held: No - he has the freedom to distribute his wealth as he wants to. No obligation to the daughter who independently can support herself. Reasoning; - have to show that she has a need - has to show that she does not have the means to live - that she did all that she could to ensure her survival or - is incapable of ensuring her survival b/c of mental/physical limitations - is not receiving any assistance from any sources - this is not the case for her - she has a job, she always wanted her independence, she is making enough money to support her daughter and herself - she had the appropriate status but the court rules that given the circumstances she had no claim on the estate - whoever has the means of making a living has a duty to be financial independent Droit de famille 1579, 1992, Superior Court Facts: - 1983 divorce btw the plaintiff and the deceased (B) - B married D and lived with her until his death in 1990 - The plaintiff as tutor of her son E (minor), from her union with B claims of his succession a amount which corresponds to 1/3 of the value of the succession in conformity with CCLC 607.1 24 - D is contesting the claim and is offering the kid $5000 Issue: How much goes to the kid according to the child support owed by B? Held: Reasoning: - value of the succession is $60 311 CCLC 607.5 The contribution granted to the spouse or to a descendant shall not exceed the difference between one-half of the share he could have claimed had the entire succession, including the value of the liberalities, devolved by abintestate succession, and what he receives. In other cases, it is equal to the value of six months' support. - Mother is also claiming that her personal situation and health do not allow her to meet the child’s needs - D says that he should only get $5000 because when they divorced she got the house and a bunch of property - Factors to consider CCLC 607.3 In fixing the contribution, the needs and means of the creditor of support, his circumstances and the time he needs to acquire sufficient autonomy or, if he was in fact receiving support from the deceased at the time of the death, the amount of the installments that had been fixed by the court for the payment of the alimentary support or of the lump sum awarded as support are taken into account. Account is also taken of the assets of the succession, the benefits derived from the succession by the creditor of support, the needs and means of the heirs and legatees and, where such is the case, the right of other persons to support. - Have to look at particular circumstances - Has to consider the situation of the heirs and that of the creditor of support - It will be many yrs before the kid gets his autonomy and although she has a job, she will have to cut back on her hours very soon due to health problems - She never asked for child support but she knew if she needed it she could ask - The action is prescribed but the court still gives the kid $12000 - why? - Child received nothing - Prescription was waived - Mother had health problems - Action when it was brought was prescribed but the court because of the circumstances of the parties took exception and allowed the claim to proceed - 2/3 of $60000 would have been $40,000 and half would have been $20,000 but the court did not grant the maximum - Not a generous reward D’Anjou v. Lecompte, 1995, Court of Appeal of Quebec Facts: - in her capacity as tutor to the minor children of the deceased, the petitioner sought a monthly allowance for support from the estate of their father - children were universal legatees under the will - they got most of it after the family patrimony was divided - petitioner is the mother of the children and the surviving spouse of the deceased - will provided that the executor would remit to the children their share when they turned 21 and until then the executor was to make payments to the children to meet their alimentary needs - the wife was making a claim of support on behalf of the two children which she was granted but the estate appealed and won 25 Issue: Can she make a claim on behalf of the kids for support? Held: No, they already got more than their share, as a.607.5 limits what they can get. Reasoning: - based on 607.5 CCLC, which imposes a limit on the claim - the amount that the children were to receive as universal legatees under the will was above the limit imposed by the provision - just because they were only getting their share at 21 yrs does not mean they had not received their share - mother was financially self-sufficient and her claim would have been prescribed - outside of 6 months period - a.607.1 CCLC in referring to an heir or legatee could not include a universal legatees - have to evaluate the part of the kids as though they had already received everything - the plaintiff cannot make a personal claim as she is independent - even if she was making a personal claim it has prescribed - mother did not receive anything - court dismissed the children’s claim b/c they said they were universal legatees and gave the wife - CA said the children were the universal legatees so that were claiming against themselves - Wife could not claim and it was prescribed - Recourse should have been to challenge the payments of the trustee - Confusion when the kids are universal heir so the claim for alimentary support will be denied Droit de famille - 2136, Superior Court of Quebec, 1995 Facts: - as capacity as tutor to the minor children of the deceased, the petitioner sought a monthly allowance for support of $3000 from the estate of their father - divorce proceedings were pending btw the petitioner and the deceased at the time of the death - children who were universal legatees and were living with the deceased - testamentary liquidators were to decide upon the amounts of interest and capital to be made over the current needs of the children - petition claimed needs were not being met and claimed a post mortem allowance for support under a.684 Held: petition dismissed Reasoning: - children qualified as creditors of support of the deceased under a.599 599. The father and mother have the rights and duties of custody, supervision and education of their children. They shall maintain their children. - Terms of 688 preclude the children from making a claim 688. The contribution granted to the spouse or to a descendant may not exceed the difference between 1/2 of the share he could have claimed had the entire succession, including the value of the liberalities, devolved according to law, and what he receives from the succession. The contribution granted to the former spouse is equal to the value of 12 months' support, and that granted to other creditors of support is equal to the value of six months' support… - Limits the contribution granted to the value of 6 months support - Also provides that claim for contribution cannot be made in the name of the creditors of support who are universal legatees of the estate - Payments that were supposed to be made before death still need to be paid - The children are creditors of support based on a.599 and can retain this quality as creditors as long as there is an alimentary obligation 26 - A.688 fixes certain limits whereby the petitioner cannot claim in the name of the children the financial contribution outlined by a.684 - By virtue of the second paragraph of 684 the contribution attributed to the children of the deceased cannot exceed 6 months of support, and the petitioner is asking to fix it for an indeterminate amount of time - Based on a.684 the mother has no right to make a claim on behalf of the kids who are universal legatees of the father Notes: - Court misapplied a.688 - Second part of a.688 places a ceiling on other creditors which only applies to parents Droit de Famille 2310, Superior Court of Quebec, 1996 Facts: - a claim for determination of support according to a.684 and following of the CCQ - petitioner in her role as tutor for the her minor child M, is claiming liquidation of the succession of A as support - the child is the daughter of the deceased - L recognized the paternity of the minor child M - Father died 1994 and created a trust and bequeathed 250,000 in which the profits have to be used for the education of the child - The trustee has to distribute the profits and the capital specific terms and conditions - There were no demands for support from the child before the death - NOT FINISHED Notes: Droit de Famille, 2310, 1997 Facts: - late AL died on December 6, 1994, leaving a wife, 3 legitimate children and 1 natural child - September 6, 1985 DJ gave birth a child MJ - Before his death, AL executed a codicil to his will acknowledging the child as his own and creating a trust fund for her benefit in the amount of 250,000 - the revenues to be used for her education and the capital to be remitted to her ½ when she turned 26 and the other at 30 yrs - DJ made no claim for child support from AL during his lifetime - AL left an estate of $16,761,182 - apart from the trust - he left the bulk of the estate to wife and kids - DJ took action against the estate under a.684 for the fixing of the estates alimentary obligation of support for the support of M and claiming 1,146,756 having regard to the value of the estate and the trust - Superior court maintained the motion Issue: Did the trial judge have the power to award support of $1,146,765 on the basis that he did in the absence of evidence as to the needs and means of the child? (More than the $250,000) Held: No, cannot fix the amount arbitrarily. The judge sends it back to superior court to make a new finding. Reasoning: - a.684 and a.688: rights of the child 27 - clear from the law that any claim of any creditor for support from the estate of a deceased is an alimentary claim and not merely a claim for a reserved portion or share of the estate - a.686: in fixing the amount of the contribution for support the needs, means and circumstances of the claimant or creditor must be taken into account - if the creditor has no need for support, the estate has no obligation - a.688 provides a formula for establishing the maximum contribution - granting the maximum under the formula will be conditional upon proof by the claimant of needs that are at least equal to the maximum calculated under the formula - a.684: imposes a limitation on the right of the testator to dispose of his property by will for the benefit of others - code limits the freedom of the testator to dispose of his estate as he pleases - this is very different from creating a fixed reserve or compulsory provision for the benefit of spouses or children without regard to their needs or circumstances - given the value of the estate and the modest means of D…J… there was certainly ample reasons for approaching the child’s claim in a spirit of equity and sensitive understanding - contribution must be fixed with an eye to the future and the past - present status of the child and future potential - fixed with some sense of her father’s milieu and financial status - approach must be liberal, sensitive and calculated to protect the present and future needs of the child - trial judge was entitled to take judicial notice of the fact that all children do have alimentary needs and he was entitled to approach the valuation of the needs generously but he was not entitled to fix the support contribution simply by applying the formula under a.688 - trial judge did not have any evidence in front of him to establish the past and future needs - h/w judge is not comfortable making a decision based on presumed needs so he send it back to the superior court Notes: - shows a lack of generosity - new provisions go beyond needs and means - court divided $16 000 000 and applied formula at a.688 - in the case of a child in an intestacy the child would get 2/3 and the wife 1/3 o child would get ½ of what they would have received of what they would have received intestate minus what they received - CA returned the case to the SC and said that - SC took the formula and applied it as though it was a legitimate portion and in some doctrine it says that this is the very formula used - CA rejected this and said there is no legitimate portion established by these provisions - must apply the criteria of needs and means - No result since case was settled - Maximum amount subject to the criteria in a.686 Droit de Famille -2866, 1998, CS Facts: - the plaintiff is asking for alimentary support - the deceased was separated from the plaintiff for 6 before death and left nothing in his will for her - he left money in trust for his kids and his partners kids 28 - when he died he was not giving any alimentrary support to the plaintiff she asked within the 6 months outlined in the CCQ a.684 they were not divorced, just separated t/f he had alimentary obligations she has a right o ask for AS even if she never got it refer to a.686 to see how to fix the alimentary support have to take into account the needs and circumstances of the plaintiff and the time necessary to achieve independence and also has to take into account the assets of the succession she needs $850 to cover children’s expenses she has medical issues which caused her to stop working she makes no money have to consider that she was able to be independent for some period before he died hard to know how much time she needs before she is financially independent also he left his kids income from capital on condition that they stay in school under 25 yrs - this is another uncertainty in light of a.866 and the circumstances they give her $30,000 Droit de Famille - 3083, 1998, CS Facts: - BS is now almost 80 yrs old - Mrs S is a widow and she accepts to be re-married with a long time neighbor who had lost his wife - They live together until T dies in 1997 - S is asking for alimentary support from the Estate of her late husband - T’s children object and argue that S has the means to maintain the same lifestyle she enjoyed with their father Issue: Does she have the needs? Held: Yes, she needs alimentary support to maintain her independence. Reasoning: - She argues that she cannot afford the home in MTL and does not want to move back into her son’s house - The kids argue that she is leading the same lifestyle as before the marriage and that they were always financially independent - A.686: criteria - Need to look at the needs and means and circumstances of the creditor/claimant - Must be established on a lump sum basis - Must be evaluated equitably in light of present and future - Must be liberal, flexible, sensitive and calculated to protect the present and future needs - She needs the money to maintain her current lifestyle and to be independent from her kids - She gets $40,000 Topic 4: Transfers Inter Vivos & Contractual Appointments: present property/future property - a. 613: mortis causa are assimilate to testamentary dispositions Theoretical Structure of Gifts Inter Vivos and Mortus Causa 29 Parties? Eligibility? Mortus Causa a.1840: are those entitled to be beneficiaries of gifts inter vivos made by marriage or civil union contract. Inter vivos Governed by K a.1807 Need capacity. a.1840: Any person may make a gift inter vivos by marriage or civil union contract but only the future spouses, the spouses, their respective children and their common children may be donees a.1807: has to be divesting at the time the K is made - irrevocable a. 1841: revocable Eligible upon death. Irrevocability is exceptional within a marriage contract unless consent. a.1841: If a donor has stipulated that a gift is irrevocable, however, he may not dispose of the property gratuitously by an act inter vivos or by will without the consent of the donee and of all other interested persons, unless the gift consists of property of little value or customary presents. 1822. stipulated to be revocable is null, even if it is made by marriage or civil union contract. Divorce 519. the lapse of gifts mortis causa made by one spouse to the other in consideration of marriage. 520. does not entail the lapse of other gifts mortis causa or gifts inter vivos made to the spouses in consideration of marriage. Liability Prior to Dec. 1, 1982 prior rule was that gifts MK remained valid unless court pronounced otherwise. Yes, a.613, assimilated with testamentary No liability for debts of donor unless specific obligation is imposed dispositions. 1821: IV which imposes the obligation to pay Donee is like a particular legatee? Or he is like debts or charges other than those existing at a universal legatee? the time of the gift is null, unless the nature and amount of those other debts or charges are specified in the contract. 1830 Unless otherwise provided in the contract or by law, the donee is only liable for debts of the donor connected with a universality of assets and liabilities he receives. If you give of gift of my business, you 30 are responsible for debts. a.1808: divesting remains conditional on death a.1807: involves actually divesting - can be Distinction Both are and takes place upon death subject to a term - gift is exigibel when term made by expires. gratuitous title - by K a.1806 Pact on future successions 706. No person may, even in a marriage or civil union contract, except within the limits provided in article 1841, renounce his or her right to make a will, to dispose of his or her property in contemplation of death or to revoke the testamentary dispositions he or she has made. Other exception on the pact on future successions would be substitutions. Dorval v. Prefontaine, 1905, appeal Facts: - in the marriage K, the husband donated all of his property to his wife and even future property that he acquired - can she oppose seizure of all of the property - superior court found it to be a gift inter vivos - the court of revision reversed this finding and found it to be a gift mortis causa Issue: Is it a gift inter vivos? Held: NO - gift is a gift mortus causa, the husband is still the owner and the seizure cannot be opposed it is granted. Reasoning: - a.778 of the CCLC says that a gift inter vivos only include was one currently owns - have to actually transfer the property to the other, that the property given actually exists - acceptance renders it irrevocable - all of these conditions form a contract - because he also gave what he would have in the future it cannot be a gift inter vivos - the exact property was not stipulated and the property was not transferred - it was a donation of goods to come in the future - this type of clause is valid only a marriage contract - it is a gift in mortis causa - it only produces effect upon death - court looked at the language - it is a gift of future property - What is meant by present property? property that is in the donors patrimony at the moment the K is formed - Court analysed it as a promise to give not an obligation - Donation de bien avenir is synonymous with donation a cause de mort - During the lifetime, the property is used to satisfy the donor creditors 31 Lemieux v. Lindsay-LTEE, 1926 Facts: - landlord seized some belongings from the husband - the wife is claiming the seized stuff belongs to her by virtue of her marriage contract - gifts that refer to property that will be acquired in the future are gifts mortis causa and can only included in a marriage contract Issue: Is she the owner of the seized property? Held: NO - it is a gift mortis causa and she has no rights to it. Reasoning: - only proof is the marriage contract which does not specify anything in particular - it is a gift mortis causa which is valid upon death - it is a term for future property which is subject to change - this is not present property, in fact it does not exist yet - all donations of future property are null (a.778 CCLC) except within a marriage contract (a.1257) - produces effected in favour of the donee only after death - she has not rights to the property Notes - what “she owns presently and which he may acquire in the future” - seizure was quashed - wife would only become owner at the time of acquisition - a gift of future property could not be transformed into a gift IV, nor can it be qualified as a term b/c term is uncertain GB Ciot Cie LTEE v. Bowes, 1961 Facts: - Bowes is arguing that by virtue of a clause in a marriage contract, that she was the sole proprietor of them and that she acquired them before the seizure was taken - Defendant by his marriage contract conveyed to the present opposant, his wife, in absolute ownership all the household furniture and household effects owned by him at the time of the marriage contract - This was a gift of present property and became the property of the wife as soon as the marriage was celebrated - Plaintiff was not allowed to seize such household furniture - Seizure was quashed and husband was held not longer to be the owner - Gift of property actually owned by the husband - Marriage K was dually registered - crucial for opposability (440-41) - b/c there was a definite amount specified and a specific period for the acquisition that he had established himself as debtor Notes: - In each case above, attempts seizure of the property against the husband - Dorval and Lemieux seizure was upheld - Bowes it was quashed - Present property must be in the donor’s patrimony or that there be a debt that it actually in the time - Future property: MC - determination for payment can only take place at death Registration and Revocation 32 Droit de Famille -1818, 1993, CS Facts: - MB a divorcee with 3 minor children died intestate in 1986 - In 1965, in her marriage contract with her husband they agreed that they would be the sole heirs should one of them die - It was not registered and the divorce judgment in 1975 made no reference to it - The tutor of the kids accepted the succession of the deceased in the name of the children and asked the respondent, the ex-husband, to renounce to any rights he may have had in the by virtue of the marriage contract - Once they were not minors, the guardian wanted to give them their share but the ex would not renounce his rights to the estate - He refused and registered the marriage contract - In the new code, upon divorce, the marriage contract is null but this had not yet entered into force 764. A legacy made to the spouse before a divorce or the dissolution of a civil union is revoked unless the testator manifested, by means of testamentary dispositions, the intention of benefiting the spouse despite that possibility. Revocation of the legacy entails revocation of the designation of the spouse as liquidator of the succession. The same rules apply if the marriage or civil union is declared null during the lifetime of the spouses. - Referred to a.208 CCCL which gives spouses the right to uphold the terms of the marriage contract - The clause could have been revoked but it was not mentioned during the divorce Issue: Is the clause in the marriage contract enforceable? Held: The gift was unenforceable against the intestate heirs. Reasoning: - Marriage contract has to be registered at the moment the marriage K is signed (a.442) - Gifts mortus causa must be registered - The failure to register the gift rendered it unenforceable against the intestate heirs Notes - married in 1965 - divorce occurred in 1975 - she died in 1986 intestate - her intestate heirs are 2 kids b/c she is divorced - notary sent a notice to the husband to renounce his rights which prompted the husband to consult his notary and he went register the K (he is claiming against his own kids) - Court looked at two things: o Were the gifts revoked by the divorce? Under presence rules it would have been but b/c they were divorced (transitional rules date from 1982) - he was pre-those provisions t/f a.208 CCLC such gift remained valid unless the court in the divorce proceeding declared them invalid which he did not. o BUT Failure to register the marriage K during the lifetime of the donor was fatal - court held that the marriage K must be registered during the lifetime of the parties - too late. No provision in the code that says that. - Revocation of gifts MC are subject to the transitional rules D.F. v. F.T., 1987, CA Facts: 33 - clause in a marriage contract which says the wife gets $10,000 upon death or bankruptcy and the husband reserves to right to give it in whole or in part before hand. Issue: Is it a gift in mortus causa? Held: Yes Reasoning: - it is a gift in mortus causa - it says explicitly that the future wife will get the $10,000 when the husband dies and the husband reserves the right to pay in whole or in part the amount during the marriage - a divorce would render the clause null since that was what was agreed upon - the clause does not impose a real obligation - the person does not actually give up the thing - there is a condition for suspension - have to figure out the intention of the parties - the donor did not assume any obligation to the donee - there is not immediate obligation Notes: - divorce in 1986 - bankruptcy does not constitute a term and does not assist in establishing… Droit de Famille - 3194, 1998, CA Facts: - in divorce proceedings the judge ordered payment of $10,000 as per the marriage contract - the appellant is arguing the judge should have declared it to be null based on a.519 b/c he argues that it is was gift in mortus causa - the defendant is arguing that it was a gift inter vivos Issue: Is it a gift inter vivos? Held: Yes Reasoning: - factors which distinguish a gift inter vivos from a gift mortis causa: o divestment o irrevocability o the terms used o the intention of the parties - gift inter vivos the divestment is actually done - the consent of the parties suffices o can look at whether the donor specified the amount produces interest from the present date o if the clause specifies a right of return before death, that is a proper indication that it is a gift inter vivos - gift mortis causa, the divestment takes place in the future - the parties said it was a gift inter vivos and irrevocable et en pleine propriete - in a later paragraph they specified that something else was a gift in mortus causa - They used the clear terminology - Also a clause which stipulates the partial return of the amount given - the return of what was not yet given - This clause would not make sense within the a gift mortus causa because if it had the donor would not yet have been divested of the money 34 - It implies an actual obligation The clause implies that he actually started paying what was owed In terms of divestment, it could have happened theoretically and not actually - the court found that there was divestment The husband made himself debtor to his wife right from the start of the marriage A gift inter vivos can have a term that make it enforceable upon death - it is not a condition Also a clause which stipulates that the donation are done with consideration of the renunciation of to the doner this also proves gift inter vivos Droit de Famille - 2440, 1996, CS Facts: - the plaintiff, C, is the executor of the succession of the his father M - he is having some difficulty with interpretation - T was married in 1960 and his wife died in 1975 - T is the father of 3 children one of which is C - In 1975 he starts living with the respondent R who married him in 1979 - Before the marriage, a marriage contract was signed in 1978 - In 1982, T loses his job and gets depressed and T and R stop living together 1984 - 1987 he lives town and goes to live in Mali where his meets respondent S and they live together until he dies in 1994 - He was told in 1993 that he had three months to live - He renounced his testamentary dispositions and left everything to his girlfriend S - The son argues that he wanted to get a divorce but did not have the time - In any case a lawyer tells him that the CCQ allows him to revoke the $50000 donation stipulated in the marriage contract - The son claims that his father absolutely did not want anything to go to his wife Issue: Is the testimony of the son admissible? Held: Reasoning: - The son has no personal interest in the case - he is honest and serious and just wants his father wishes respect - he can act on behalf of his father - Based on a.2870: a court may decide that his testimony is admissible Partition of the family patrimony: 417. The court may, however, upon the application of one or the other of the spouses or of their successors, decide that the net value of the family patrimony will be established according to the value of such property and such debts on the date when the spouses ceased living together. - Under these circumstances, it does not make sense to have either party benefit from the family patrimony since they had not lived together for ten yrs since he died - It makes sense to make the date of partition of family patrimony to the date that they stopped living together (July 1984) Donation in a.3 - This was satisfied since when he moved out, she got a bunch of furniture Donation in a.5 - It is a gift in mortis causa - the terms are clear and unambiguous - $50,000 to be received upon death or if he wanted to give it before which he did not do 35 Was it revoked by the testament? - Question as to whether the old code or the new code applies - The old code says a gift mortus causa is irrevocable - CCQ a.1841: revocable - The CCQ is applicable in light of the transitionary rules of the CCQ a.37 and a.106 - The gift in mortus causa was validly revoked by testament Notes: - Gift was described as inter vivos but it was payable on death - Will left everything to his de facto spouse - Dates are crucial - Gift was a gift MC not IV - No stipulation as to irrevocability - Not surprising that in pre-1994 K that you would rarely see a gift MC described to be irrevocable - S.106 of the transitional rules was applied which provides that rule in a.1841 will now apply to all gifts MC and a.613 assimilated gives MC to testamentary dispositions Transitional rules 106. The provisions of article 1841 of the new Code are applicable to gifts in contemplation of death made before 1 January 1994, provided such gifts have not yet been executed on 1 January 1994. a. 765. Express revocation is made by a subsequent will explicitly declaring the change of intention. A revocation that does not specifically refer to the revoked act is nonetheless express. - Have to look at date of death, if pre-1994 (CCLCL) then the gift MC was irrevocable. Labadie v. Labrecque, 1981, CA - Respondent, Labrecque is the widow of someone who died in 1973 and she is sole heir according to their marriage contract signed in 1962 - Labadie is saying that a share-purchase agreements is not null (where someone sells and someone buys the shares of a company) (trial court found that it was null) - Trial court said Labadie was the debtor of the respondent - The guy who is dead is one of three shareholders of this company and held 300 common share and 300 preferred share - Labadie has same amount shares - Parties asked the SC to decide on a matter of law CCP 448 (declaratory judgment) - In 1971, it was decided and notarized that when someone dies, there share goes to the other shareholders - Also had a life insurance policy that said that $10,000 will be given to the company so that ensures the widow is compensated for the shares - If one dies, the others will buy the shares from the estate for $10,000 Issue: Is the contract signed between the shareholders on December 3 1971 valid? Reasoning: - This clause is valid - It is not uncommon to see it in a business agreement - Helps the business and it would be difficult for others to step in - Avoids conflicts - avoids the imposition of shareholders who know nothing about the business - Ensures the harmonious continuance of the business 36 - in the share-purchase agreement there is an immediate obligation to offer to sell there shares to one of the shareholders before selling it to someone else also whoever dies first has to be buy the others shares this is not a gift mortus causa, it is a share-purchase agreement and it is valid Notes - share-holder agreement is not a pact - must be drafted in such a way that the obligation to transfer the shares is an immediate obligation on death subject to a term, delivery on death Bergeron v. Beauchesne, 1988 Facts: - the father of the plaintiff dies in 1986 - by virtue of his marriage contract, he named his wife universal legatee - before his death but after the creation of the marriage contract, the deceased subscribed to a contract of adhesion for the RRSPs which designated him the beneficiary in the case of death from the Caisse Populaire - Court did not except the analysis… - A beneficiary designation under an RRSP is invalid in Quebec unless the RRSP is issued under an insurance policy or if it’s a fixed term annuity. Issue: Is this was gift in mortis causa? Reasoning: - The regime for the RRSPs in which the deceased adhered to is not a regime established by the insurance company and does not constitute a life annuity - Did not understand THE BENEFACTOR (DONORS, TESTATORS, SETTLORS) Topic 5- Gifts During Mortal Illness Mortal Illness 1820. A gift made during the deemed mortal illness of the donor is null as having been made mortis causa, whether or not death follows, unless circumstances tend to render it valid. If the donor recovers and leaves the donee in peaceable possession for three years, the nullity is covered. Pesant v. Pesant, 1934, SCC - cannot give a gift in contemplation of death - valid don manuelle because there was immediate delivery and possession Elizabeth Sapatos v. Mike Sabator, 1982 - CCLC a.762 37 CCQ 1820. A gift made during the deemed mortal illness of the donor is null as having been made mortis causa, whether or not death follows, unless circumstances tend to render it valid. If the donor recovers and leaves the donee in peaceable possession for three years, the nullity is covered. - not IV - null as MC (presumption not rebutted) - as per Pesant Topic 6 – Testamentary Capacity There are two types of incapacity: natural and juridical incapacity. Natural is due to illness, for instance. Juridical incapacity is as stated in law (in the case of a minor child, the major under curatorship/tutorship or a mandate in case of incapacity). A mandate in case of incapacity falls within the scope of protected supervision. Testamentary Capacity - 1385 CCQ deals with capacity and consent. (K law applies to wills) 1389: need the capacity to bind oneself There is a presumption of capacity, which is encapsulated in article 1 (enjoyment of rights), article 4 (exercise of rights) and article 5. Basic principle 703. Every person having the required capacity may, by will… Transitional rules 40. Subject to section 7, the capacity required to make a will and the form of the will are appraised according to the legislation in force on the day the will is made. 707. The capacity of the testator is considered relatively to the time he made his will. How status has impact on capacity? 154. In no case may the capacity of a person of full age be limited except by express provision of law or by a judgment ordering the institution of protective supervision. 708. A minor may not dispose of any part of his property by will, except articles of little value. 42. A person of full age may determine the nature of his funeral and the disposal of his body; a minor may also do so with the written consent of the person having parental authority or his tutor. 710. A person of full age under curatorship may not make a will. A person of full age provided with an adviser may make a will without assistance. 711. A tutor, curator or adviser may not make a will on behalf of the person whom he represents or assists, either alone or jointly with that person. 709. A will made by a person of full age after he has been placed under tutorship may be confirmed by the court if the nature of its dispositions and the circumstances in which it was drawn up allow it. Limitations…relate to undue influence 761. A legacy made to the owner, a director or an employee of a health or social services establishment who is neither the spouse nor a close relative of the testator is without effect if it was made while the testator was receiving care or services from the establishment. A legacy made to a member of a foster family while the testator was residing with that family is also without effect. 38 Presumed to have capacity - onus is on the person asserting incapacity to prove it 2803. A person wishing to assert a right shall prove the facts on which his claim is based. A person who alleges the nullity, modification or extinction of a right shall prove the facts on which he bases his allegation. There are two issues: timing and intensity of the incapacity: Intensity: - The difference between tutorship and curatorship is the intensity of the incapacity. - Someone who is totally and irreversibly incapable falls under curatorship. - Someone with a partial incapacity will normally fall under the tutorship regime. - Concerns evidence - Requires to prove that there was an absence of a clear and conscious will to contract or to prove their was a lucid interval - SCC Thibodeau v. Thibodeau: proof could be made indirectly o if it was proven that someone was mentally deficient slightly before or after the execution of the K, it could be concluded that deficiency existed at the time of execution of the K o to rebut presumption have to look at timing Timing: - In order for the will to be valid, the testator has to have been capable at the time of the signing. - Therefore, the first question of evidence when questioning a will is to determine whether the person experienced a lucid interval (pg. 48). Nullity 1419. null where the condition of formation…where the consent of the parties or of one of them is vitiated. 1421.…a contract which does not meet the necessary conditions of its formation is presumed to be relatively null. 1420. …may be invoked only by the person in whose interest it is established or by the other contracting party. Most evidence as to capacity is by way of presumption. Lay witnesses are often the key witnesses as they know the person are deal with him on a daily basis. Expert testimony is useful but not as critical. Benoit c. Les oeuvres de la maison du Pere Facts: Mme Bougie, the testator, was old and had severe memory loss. She was being assessed by doctors and social workers and at one point, the homologation of a mandate was sought. She signed a will in January 1992. In April, the medical reports clearly stated that she was incapacitated. Upon Mme Bougie’s death, M. Benoit filed a motion seeking the cancellation of her January will on the basis of incapacitation. M. Benoit was a key beneficiary in her previous will. Mme Bougie stayed in her apartment until December 1992. She was put under a tutorship regime in March 1993. The CCLC would not help her because she had a lot of friends and her condition improved. A 2 minute video from November 1992 showed Mme Bougie talking about an event from the previous year. 39 Issues: Was Mme Bougie’s January will void due to incapacity? Decision: No. Reasoning: The medical assessment was done to determine whether Mme Bougie could live alone. The judge set aside all of the experts’ testimony except for one, who had found that Mme Bougie retained residual capacity. There was no medical history supporting a finding of testamentary incapacity. It is difficult to assess whether this is sufficient for will-making purposes. The judge found the video evidence to be conclusive. The lay witnesses were believed over expert testimony. The onus is on the person alleging incapacity to reverse the presumption by convincing the judge of incapacity. The judge did not find that M. Benoit had shifted the burden of proof but even if he had, the defendants would have proved that Mme Bougie was capable. Mme Bougie’s new will was consistent with her old wills, which helped her case. Ratio: Lay witnesses are often more reliable than expert testimony in matters of capacity. Reversing the presumption of capacity: The person alleging incapacity must establish prima facie that when the person signed the will, he was normally either impaired or in a state of incapacity. Prima facie evidence will vary according to the facts but it must convince the judge of incapacity on a balance of probabilities. Once the judge is convinced that the facts warrant a finding of incapacity, the onus shifts and the defendant then has to prove capacity by a balance of probabilities. NB: Undue influence and incapacity are mutually exclusive: if you are incapacitated, you cannot be unduly influenced. However, lawyers tend to argue both, just in case (McDermid c. Howman-Trainor). Thibault v. Guilbault J.E. 99-434 Facts: The father was suffering from a bad form of cancer and sought solace in a woman who became his second wife. The appellants, disinherited by their father, contest his will and marriage contract as being void for reason of unsound mind or because of undue influence. The trial judge said that the appellants had to prove the unsound mind beyond all doubt. Issues: Are the will and marriage contract void due to unsound mind? Is the standard of proof beyond all doubt or according to the balance of probabilities? Decision: No. Balance of probabilities. Reasoning: There is no proof that the plaintiff unduly influenced the deceased. The testator was medicated, but he was coherent and had expressed his wishes many times. The appellants were very ill placed to submit any proof as they had no contact with their 40 father since June 1991 due to the quarrelling. Ratio: In order to rebut a presumption, the proof must be on the balance of probabilities. Adults under tutorship: article 709 deals with a procedure by which a will may be made and signed in court. It prevents situations where one would seek confirmation. It proves that tutorship is a lighter regime than other options, as previously discussed. Mandate in case of incapacity (2166): It is similar to power of attorney. It is a mandate signed by the incapacitated person that is only valid once it is recognized by the court (homologation). It is a private regime, so it does not fall within the surveillance of the public curator. For tutorships and curatorships, a report and audited financial statements have to be submitted every year. Mandates are private and are not subject to surveillance except where a complaint is filed against the mandator’s administration. Court appointment of tutor/curator: The court is not declaring that the person is incapable: judges do not have the training to do so. They confirm that the person is incapable (constater). The physician and the trained social worker determine that the person is incapable and the judge confirms this finding legally. Bertrand v. Operation Enfant Soleil (cited in Benoit) Facts: M. Bertrand started to show signs of illness in 1988 and his behaviour became erratic. He was always angry and impatient. At one point, he became so ill that the homologation of a mandate was sought for him. He was so angry when he heard about this that he went to a notary and sat for 2 hours, complaining about his siblings and his children. He said that he wanted to give all of his money away, at which point the notary suggested Operation Enfant Soleil (OES). He changed his will, leaving a bequest to OES. Upon his death, his family filed suit seeking the cancellation of the will. Mme Bertrand was the main beneficiary under the old will, meaning that the children had an interest in finding that the second will was void. Issues: Is M. Bertrand’s will void due to incapacity? Decision: Yes. Reasoning: One of the notary’s duties is to ensure that the person drafting a will is capable. If the notary has any doubt, he should refuse to draft the will. The notary should have inquired about M. Bertrand’s background. If he had, he would have realized that M. Bertrand’s behaviour was not normal. Timing is key! The judge ruled that M. Bertrand did not have full capacity at the time. The trial judge relied too much on the notary’s testimony. The notary is not an expert but merely another witness and a witness who knew the testator is to be preferred. 41 Ratio: Timing is crucial when determining incapacity. Riportella c. Gaudreault-Houle Facts: M. Riportella was placed under a curatorship. When the regime was reviewed, it was changed to a tutorship. However, he had changed his will while under the curatorship. When he died, his children, who had lost out in the second will, challenged the will. Issues: Was the second will void for incapacity? Decision: No. Reasoning: M. Riportella had expressed many times that he wanted to change his will. He also had serious cause to change his will. M. Riportella did not do his own banking or any day-to-day tasks, but he was still pretty much in possession of his faculties. Ratio: People under curatorships may still have the capacity to make a will (it depends on the circumstances). Capacity should be assessed at the moment when the will was made (article 707), although case law has accepted evidence concerning the testator’s state of mind before and after the signing. More cases: In Laliberte c. Guinta, the judge finds that it must be proved that the testator was incapable at the time of signing. Establishing incapacity before and after can provide context, but it is not enough on its own to set aside a will. If there is a doubt, it will play in favour of the will. In Pare v. Pare, the court said that if the person is 100% insane, the onus is shifted onto the defendant automatically. This is very rare, as mental illness is nuanced. In Lafontaine v. Lafontaine, the court says that a person who lacks the ability to self-assess his mental state may lack capacity. Charbonneau (pg. 52) Facts: M. Charbonneau was estranged from his children. He had dementia, a bad heart condition and was an alcoholic. This eventually lead to a 42 tutorship but nobody wanted to take him because he was a character. An old girlfriend offered to let him stay at her house if he’d buy her a car. When M. Charbonneau died, he named her the beneficiary of his life insurance proceeds. Life insurance is not a will but it is a liberality, so it is very similar. Issues: Is the beneficiary designation valid? Decision: Reasoning: Article 761 declares all legacies made to the owner/director/employee of a residence or a member of a foster family to be null (bequest). Article 1817 declares all gifts made to the owner/director/employee of a residence or a member of a foster family to be null (donation). The designation of a beneficiary falls right in the middle. Both articles create absolute presumptions, meaning that if the liberality falls in one of those categories, it is irreversibly null There was some case law arguing that it was a donation. It was not clear what counted as a foster family, although the case law indicated that even a simple home providing the equivalent of services could be construed as a family home. The woman tried to argue that she merely rented out rooms, but the judge took a dim view of this argument (not all boarders bought cars for her and brought their own computers and furniture). It was decided that because it was mortis causa, it could be viewed as a bequest and thus was null on the basis of article 761. Ratio: Transferring large sums of money in any manner from residents to staff of public or private retirement homes is not permitted. Comment: Lafortune v. Bourque was one of the first cases to say that article 761 could be invoked in the case of a private facility so long as the scope of services offered was comparable. Charbonneau came after Labbe v. Laflamme, which Andre considers to have been overturned by Charonneau. McEwen v. Jenkins [1958] S.C.R. 719 Facts: John Holland granted Charles Jenkins power of attorney on January 30 th, 1948. He also executed a will leaving all movable and immovable property to Jenkins and Wesley Bradley, his executors, in trust, and 1,000$ legacies to his sister-in-law and his 11 cousins, including Mrs. McEwen. The estate was then to be split between the Salvation Army and the Red Cross. He signed the will 25 days before he died on March 15th, 1949. Mrs. McEwen asked that the will and the power of attorney be declared void, that the two men be forced to account to her and that they pay the costs of the action. 43 The Cour Superieure declared the will and the power of attorney to be void. The Cour also voided 6 purchases effected by Jenkins. Mrs. McEwen appealed and lost. Issues: Was Mr. Holland of sound mind and disposition when he granted Jenkins power of attorney and when he signed his will? Decision: No, he was not. Therefore, the will and the power of attorney are void and the two men owe the heirs an accounting. Reasoning: Once it is shown that a party is not in his right mind, the onus is thrown upon the party who wants to sustain the validity of that transaction to show that, although not at one time in his right mind, he had recovered and was compos mentis. In order to render a will void, it is not required to be wholly insane. Mr. Holland had suffered from diabetes for quite some time. On January 20th, 1948, he suffered a stroke which caused partial paralysis and his hospitalization until his death. The trial judge found that there was a heavy presumption that Mr. Holland was not of sound mind for the last 14 months of his life and that the defendants did not rebut the presumption. Ratio: The burden of proof is on the person alleging sound mind, where the evidence points to the testator not being of sound mind. Gold v. Gold [1963] C.S. 45 Facts: Mrs. Gold had been suffering from cancer for 3 years. She went into hospital on August 16, 1956 and executed a will on August 20, 1956, the day before her operation. On August 24, 1956, she executed a second will. The differences between the two wills were the following: o In WI, the daughter and the husband were joint residuary usufructuaries, with the survivor becoming the full usufructuary. In WII, the usufruct was limited to 75,000$. o In WI, bare ownership was left to the grandchildren. In WII, it was left to the shareholders of “A. Gold and Sons Ltd” at the time of Mrs. Gold’s death. The second will was made after her husband had made serious objections to her first will. When Mrs. Gold died on November 6, 1956, the shareholders were Reuben, Ralph and David Gold and Mrs. Gold. Issues: Can the second will be declared void for reasons of unsound mind, improper execution of the formalities or undue influence? Decision: No. Reasoning: It is manifestly clear that Mrs. Gold was a sane, intelligent and willful person, so the issue of unsound mind is not relevant. 44 The formalities were properly followed. Family members may put claims before other family members when they are drafting wills, as long as there is no coercion. Mr. Gold’s comments were clearly fair, as he stood to benefit less from the second will than from the first will. The burden of proof to demonstrate that Mrs. Gold was not in possession of her faculties to the extent that she was able to comprehend the meaning and to measure the effects of the will was put on the plaintiff and she did nothing to fulfill it. She was given medication, but not enough to render her incapable within the required meaning. Ratio: Barring sound and compelling evidence, a person is assumed to be in possession of her intellectual faculties. Yared v. Zigayer [1958] B.R. 198 Facts: Michel Yared married Marie Zigayer and seven months later, their daughter, Corrine, was born. Michel made a will where he named his daughter the particular heir of property in Montreal having a monthly income of $150. He left the rest of his estate to his sisters and brothers, naming his brother Paul as his liquidator. It was stipulated that Paul had to give Corinne the revenue from the property every six months. 18 days later, on June 6, he made a codicil revoking the gift to his daughter, instead, giving her a sum of money to be received when she attained majority. Mme Yared contested the codicil, saying that Mr. Yared was of unsound mind due to the influence of his brother. Issues: Should the codicil be declared void due to undue influence? Decision: Yes. Reasoning: Mr. Yared was not on any medication when he made the original will but he was quite heavily medicated when he made the codicil. The doctor testified that he was “suggestible”, although he stopped short of saying that he was of unsound mind. Mr. Yared was heard to say that he loved his daughter and wanted to take care of her. Paul didn’t want the property to go to a child and repeatedly talked to his brother about it, saying denigrating things about Mme Yared, who had initiated separation proceedings for an irrelevant reason. Mme Salhany heard Paul say that he would take care of the child if Michel left him the property. Ratio: The circumstances surrounding wills should be closely examined when evaluating the soundness of mind of the testator. 45 M(J) v. R(J) J.E. 94-598 Facts: The testator was hospitalized in August 1989 and the hospital administrators declared him incapable of administrating his goods. He had made a will in September 1987. He made another will on November 13, 1989, according to the laws of England. Issues: Was the second will valid? Decision: Yes. Reasoning: A declaration of incapacity must be made by a judge or a protonotaire, which was not done. There was a presumption of incapacity but the heirs successfully rebutted the presumption. The testator was lucid from September 25 until his death on December 17. Ratio: A hospital’s declaration of incapacity of administration of property does not come within the meaning of article 325 CCQ. McEwen v. Jenkins, 1958 Facts: - deceased signed the power of attorney to the defendant - one of the heirs is suing the power of attorney personally and is trying to get the court to invalidate the will because of a lack of capacity Reasoning: - court held that the mind of the deceased was habitually in a state of confusion and no satisfactory evidence has been adduced that the instruments were executed during periods of lucid intervals - will and power of attorney are null for lack of mental capacity Gold v. Gold, 1963, CS - the deceased made two wills right before he died. - The plaintiff are claiming that the 2nd will was made when the deceased lacked capacity to consent to the will - Court says no - he had capacity - The second will is not unreasonable given the circumstances - he left the bulk of his estate to his 3 children who administered and developed the family property - She was not physically forced to sign the will, not was she unable to sign it - The first will was created by Mrs Gold herself and the second was created with advice from her family which is not illegal - Only where the persuasion becomes moral coercion that there is a problem - Rule: a disposing mind and memory is one able to comprehend of its own initiative and volition the essential elements of the transaction 46 - Under a.986: those who are incapable of contracting those who by reason of weakness of understanding are unable to give valid consent Issue: Was Annie Spector Gold in possession of her intellectual faculties to the extent that she was able to comprehend the meaning and measure the effects of the will she was executed and to asset to it by an act of her own free will? - Person supporting the instrument has the burden of proving the person was of sound mind - Juris tantum - sanity of a testator - May be contradicted by presumptions of fact - Undeniable fact that Mrs Gold was a person of sane and sound and strong mind, both before her operation and after the execution of her will of August 21, 1956 any impairment of her mental faculties at the time of the execution of the said will could only have been temporary - Burden was on the plaintiff to show evidence of existence of such a temporary impairment - Question of capacity in relation to the drugs is a question of fact not theory - The plaintiff daughter who is contesting the will serious doubts as to the credibility - She seems to be questioning the contents and not her mother’s capacity - She was there when it was signed and did not contest then - Notary Blond testimony - court accepts - she was in possession of full mental capacities - Her instructions were clear, she understood the effects of these instructions, she wanted to abide by the wished of her husband and she knew why his wished should be followed - She was of sound mind Yared v. Dame Zigayer, 1958 - husband died on July 5, 1950 - they had a daughter on February 5, 1950 - he died of cancer - in his will which he made in front of a notary he left the revenues of his property and the property itself to his daughter who was 3 months old at the time - particular legatee - he left he left the rest of his property to his brothers and sisters and named his brother as executor - 18 days later he signed a codicil to his will (his illness was progressing) - replaced to my daughter with Chateaubriand - Madame Yared wants to be named tutor for the daughter - Yared is acting as tutor for the child and is trying to get the will declared null and void - she is arguing that the defendant should be held personally liable for the damages - arguing that he was not of a sound capacity to sign the will - he could not understand the contents of the codicil - he wanted his daughter to get a large portion and in the codicil she was only getting revenues once she turned 21 and she is completely disinherited if she dies before - she is arguing that this change was the result of undue influence - because of the medication he was not in a state to be able to make a decision clearly - he was influenced by the suggestions of the father - many witness said he had a strong affection for his daughter and wanted to ensure that she was welltaken care of until age of majority - Paul Yared did not like that he had left the property to the daughter and wanted this changed - He also tried to convince his brother that his wife was the cause of the cancer - A witness overheard him saying that if he left the house to Paul Yared, he would promise to take care of the daughter and not to leave it to the wife who was the cause of his misery and illness - court accepts this 47 - When the notary came everything happened very quickly - it was read to him, the contents of which were complicated even for a professional and signed The contents of the will were not normal The dispositions were contrary to the natural order of things The codicil was different from the original - it did not make sense Taking into account his state of mind, the drugs he was taking, and the structure of the document that he was not in a position to consent to it freely He took advantage of his brother M(J) v. B(J), 1994, CS - He deceased made two wills - The first one named the plaintiff as universal legatees and the second named the defendants as legatees - The plaintiffs are arguing the deceased did not have the mental capacity to agree to the 2nd will - The proof does no reveal anything strange about the will - Leaving his property to his aunts and uncles who took care of him before his death was not unreasonable - The will was made in front of 3 independent witnesses - The plaintiff made prima facie proof of incapacity but the defendant rebutted it 99-434, CA - disinherited by their father, the appellants are contesting a will and a marriage contract saying that the father was not of sound mind and was not capable of alienating his property - the appellants had broken all relations with their father so they would not be in a position to judge his mental capacity - the notary, witness who spend time with him and medical records show that he was of healthy state of mind - no proof of capitation Topic 7: Outside Influence Stoneham and Tewkesbury v. Ouellet, 1979, SCC - appellants are arguing that the testators illness made him more susceptible to undue influence - credibility of the witness is important here - undue influence assumes that the person exercising undue influence does so in his own interest and by abuse of the influence with he has over the testators mind and will - if the legatee uses improper schemes, disgraceful devices and misrepresentations to denigrate the heirs in the minds of the relatives then it can be said that he act of giving is not the true reflection of the free, genuine intention of the settlor, it reflects the intention of the person making him do it - undue influence will result in the nullity of a gif if the fraudulent maneuvers of the donee are such that without them the donor would not have agreed to the gift - the donee would have had to have slandered the presumptive heirs of the donor when through disgraceful - self-seeking attention to the testator or advice to the testator are not in themselves acts of suggestion or undue influence that will make the will invalid 48 - if it takes on the character of fraud, it will be a basis for invalidating a will ex. inciting animosity against the presumptive heirs, reviving an old dislike, acting so as to ensure complete control over the testator’s will, as by intercepting his mail, alienating the family and friends of a bedridden individual, interfering in his affairs, refusing to summon a notary to prepare a codicil or new will - deceit or coercion in all its form - someone who takes of the testators free will and indicates to him how he should bequeath his property vary from one case to another - depending on the circumstances of the case - testators age, state of health and condition in life may all have played a role in the degree of resistance he is able to make to the manoeuvres focused upon him Facts - two months before his death Syndey Wright made an authentic will by which he bequeathed to the appellant corporation the principle asset in his estate, namely a large wooded piece of land to be used as a public park and to respondent the sum of $200 - twelve days before he died, while ill and hospitalized he made a second authentic will by which he made the respondent, Ouellete his sole universal legatee - trial court found their was undue influence, CA reversed the finding Held: SCC allowed the appeal - was undue influence Reasoning: - the respondent called the Mayor McCune a two-footed-pig - respondent told the deceased that Mayor McCune had given his land to the municipality and was going to cut the dead wood on the land - implying that the municipality was going to disregard the terms of the 1st will - prompted him to change his mind b/c of his wish to keep it in its natural state - respondent tried unsuccessfully to obtain a power of attorney from the testator - respondent had learned that the deceased was giving his land to the municipality to make into a park and he said “that will not be the end of it” - “I have news for you - I have a will too” - when the municipality called the respondents house to speak with Sydney Wright, the respondents mother told them that he was in Quebec city when in fact he was in the hospital - by the first will, this retiring man was able to prolong beyond death the only role he had played during his lifetime, the preservation of his woodland in its natural state - where as the second will with bequeathed the woodland to the son of a lumberman is a negation of his life’s role - admissions, contradictions, and actions of the defendant testator was victim of undue influence 2000-1378, CS Facts - 1986 the testator who was 84 yrs old went to live with the defendants who ran an old age home - it was $800/month - 1989 the testator fractured her hip - her abilities were diminished - She named her nephew and the defendant to help administer her property - 1990 she signed a notarial will which advantaged the defendants - In 1991 she signed another will which advantaged both her nieces and the defendants - In 1991 she signed her last will in which the defendants asked that it be done at their residents - Later that year she makes a donation to the residence for $100,000 and inherits $400,000 - 1994 she was the only resident in the old age home - Her nieces could not visit her w/o having either a nurse of the defendant in the room 49 - They unplugged her phone line Her rent doubled Testator drew up a mise en demeure in which her family could no longer visit or talk to her directly 1994 she gave them $15,000 1995 she gave them another $100,000 1996 the Commission for Human Rights analysed the situation and said there was nothing they could do 1997 she dies and the plaintiff, the executor, contests the validity of the will based on undue influence and a.761 Issue: Was there undue influence? Does a.761 apply here? - Provision of public order - Can look at a.276 of the Heath and Social Services Act to interpret the law - h/w a.761 adds “foster family” to give it its own proper meaning - has to be interpreted broadly and liberally to achieve its purpose - legislator wanted to protect vulnerable people who are in a situation of dependence - refers to all people who are in a paying resident and receiving health care - have to be in a situation of dependence on the people who run the place - the court sees it as a foster family and t/f the property they were give is w/o effect - consent can also be vitiated by undue influence (capitation) - she was of sound mind when she signed the will but she was vulnerable and easily influenced - she was 89 yrs old and was worried about having to leave the defendants - they got her to distance herself from her family and kept up the fear of living somewhere else - defendant ensured that they were an obstacle btw her and her family - they were protecting her personal interests - they worried her by telling her they may move - when they told her they were closing the business in 1993, she made a huge donation - yes, there was undue influence THE BENEFICIARY: LEGATEES, DONEES AND OTHER RECIPIENTS - - liberality: disposition of property implies that there is a recipient recipient may not be fully individualized (may not be born) at the time the disposition becomes operational central notion: determinacy of beneficiary - determinacy is linked to enforceability and validity of the liberality - if no none can seek enforcement the disposition may be invalid for lack of certainty or vagueness t/f validity and enforceability are often linked as tests a.1239: substitutions rights of substitute are exercised by the person designated as the grantor to act as curator to the substitution curator enforcing the right of the unborn grantor may appoint someone or the court a.1289: rights of beneficiary of a personal trust also exercised by person designated by the settlor to act as curator or by court Court has rarely asked that a curator be named to represent the unborn bu tat least a mechanism a.1287: administration of a trust is subject to the supervision of the settlor or of his heirs…the administration of a private or social trust is subject, according to its object and purpose, to the supervision of the persons or bodies designated by law. 50 - Effects and benefits of liberalities are given maximum in charitable trusts and then a power given to the court to amend, vary or modify trusts Topic 8 - Civil Existence (a.617-624) JURIDICAL EXISTENCE 1. Natural Persons - - a.617: natural persons, absentees, children not yet born (as long as born alive) may inherit; for trust and substitutions, persons who have required qualities may inherit o Daigle v. Tremblay; Allard v. Monette (child not yet born) a.1257: Moral persons (legal corporations) foundations, 2186, 2267 and following partnerships and associations a.522 - 526: criteria for establishing filiations o what about adopted children? Illegitimacy Does the illegitimate child have a right in the substitution? No, looking at transitional rules Principle is no retroactivity The transitional rule was that the change of legitimacy applied to all children with the exception - only applied to un-open substitutions This was an open substitution in 1977 t/f the rule did not apply 522. All children whose filiation is established have the same rights and obligations, regardless of their circumstances of birth. No difference btw legitimate and illegitimate children. Impossible to determine predecease survival a. 616….they are deemed to have died at the same time if at least one of them is called to the succession of the other. The succession of each of the decedents then devolves to the persons who would have been called to take it in his place. Absentees a.85: presumed to be alive for first 7 yrs, after which can apply for declaratory judgment a.86: during the 7 yrs a tutor can be appointed by the court a. 617. Natural persons who exist at the time the succession opens, including absentees presumed to be alive at that time and children conceived but yet unborn, if they are born alive and viable, may inherit. a. 92. A declaratory judgment of death may be pronounced on the application of any interested person…seven years after disappearance. It may also be pronounced before that time where the death of a person…may be held to be certain although it is impossible to draw up an attestation of death. Unknown 51 815. Known creditors and legatees by particular title who have been neglected in the payments made by the liquidator have, apart from their action in damages against the liquidator, an action against the heirs who have received advances and against the legatees by particular title paid to their detriment. The creditors also have a subsidiary action against the other creditors in proportion to their claims, taking account of causes of preference. 816. Creditors and legatees by particular title who, remaining unknown, do not present themselves until after the payments have been regularly made have no action against the heirs who have received advances and against the legatees by particular title paid to their detriment unless they prove that they had a serious reason for not presenting themselves in due time. In no case do they have an action if they present themselves after the expiry of three years from the discharge of the liquidator, or any preference over the personal creditors of the heirs or legatees. Where there is a loss of status 650. A successor who has been unaware of his heirship or has not made it known for 10 years from the day his right arose is deemed to have renounced the succession. Unworthiness or ingratitude (gifts) a.742: can draw the conclusion that it applied to particular legatees 620. Legal unworthiness: 1) a person convicted of making an attempt on the life of the deceased; 2) a person deprived of parental authority over his child while his child is exempted from the obligation of providing support, in respect of that child's succession. Timm v. Timm: son unworthy of succeeding to his parents’ succession b/c he murdered them. PG du Canada v. Constance St. Hilaire: wife unworthy b/c guilty of involuntary homicide of husband 621. Judicial pronouncement: The following persons may be declared unworthy of inheriting: (declaration by the court) 1) a person guilty of cruelty towards the deceased or having otherwise behaved towards him in a seriously reprehensible manner; 2) a person who has concealed, altered or destroyed in bad faith the will of the deceased; 3) a person who had hindered the testator in the writing, amendment or revocation of his will. (Serious obstruction) 622. if the deceased knew he was unworthy and conferred him benefit anyway than its ok 623. Any successor may, within one year after the opening of the succession or becoming aware of a cause of unworthiness, apply to the court to declare an heir unworthy if that heir is not unworthy by operation of law. 628: deemed never to have been an heirs, 627: must restore everything - Negro v. Negro, SC, 2004: court would not declare unworthiness b/c they were alleging that the grandchildren had been cruel to the grandfather - must act within 1 yr of the death o Effects: unworthiness, unworthy is deemed never to have been an heir, his share will go to the other 628: must restore everything he has received - does not prevent representation from occurring o A.38 transitional rules - Brossard v. Journal La Presse o Killed his wife and kids and then himself o Court held that his estate could not be held to be unworthy even though he was declared to be unworthy o No provision in the CCQ dealing with insurance 52 Petition of inheritance - Person has to establish that he is the heir 626: heirship recognized at any time within 10 years from the opening of the succession 650. if you don’t claim within ten yrs deemed to have renounced 2. Legal Persons - a.618: state may receive by will; trustee may receive a legacy for the trust trustee receives a legacy but not as a heir, as an administrator on behalf of the beneficiary Certain emanations of the state such as Crown corporations governed by special statutes - can get money Other legal persons such as foundations which are entitled to receive property (Part 3 of the QC Company’s Act) Manoli v. Canada, 1994, CS Facts: - looking for a declaratory judgment - want to see if two legacies made in the testament of Manoli to profit of the government are void and null because of ambiguity and that they therefore should be included in the will as intestate to be distributed according to the law - he immigrated from Egypt - his sister and her husband sponsored him - he lived for 3 yrs with them - then he stayed single and went to live on his own on welfare - he died of cancer at 77 - his sister took care of his belongings - he left money from one bank account to a bunch of people/charities and the money from another bank account to the government - did not specify which government - federal or provincial - have to favour the intention of the testator Issue: Is the particular legatee null because it is ambiguous - which government? Held: will is null b/c it is ambiguous. Reasoning: - it has been established that in the law of succession, the jurisprudence establishes that a legacy is null when the designation is vague and uncertain - Aubry et Rau: testamentary dispositions have to be made in favour of specific persons - Uncertain is where the individuality is not determined and is not susceptible to being by reading the will - The will has to come directly from the deceased and not from the executors of the will - Courts do not have the power to distribute someone’s legacies - A will must dispose of property in such a manner that the trustee or executor can be compelled to carry out its provisions - if he does not voluntarily do so and if the will does not clearly specify the legatees to whom the property is left and legatees who can compel its execution, the bequest is null on the ground of vagueness and uncertainty - He left his money to “the government” without specifying which one - The organizations that he left his money to were both provincial and federal - It is impossible to tell which government - Will is null 53 3. Unincorporated Associations Prince Consort Foundation v. Helene Blanchard, 1991, CA Facts: - man died and left a property to the Prince Consort Masonic Lodge of Montreal - he left usufruct of the property to his friend for her lifetime and left his sister revenue - after the death five members of the lodge made an application to incorporate the non-profit association under the name Prince consort foundation - the will of the deceased names the Lodge and not the Foundation as beneficiary - the executor is requesting the court to pass on the validity of the bequests to the lodge - in the event that they are declared valid, he request authorization to deliver the same to the foundation - Masonic lodge is neither a provincial corporation or a federal commercial society - its existence materializes because of the 300 members - Blanchand is claiming that under the CCQ this type of organization cannot inherit Issue: - whether the lodge being an organized, structured association having the right to acquire property is entitled to inherit despite the fact that it was not incorporated and whether it was civilly in existence on March 10, 1968 (date of death of the deceased) pursuant to a.608 CCLC - whether the member of the lodge are beneficiaries - whether the appellant who incorporated only after the death is entitled to the bequest Reasoning: - intention of the testator is clear - he clearly stated that he bequeathed the Lodge the property and monies referred to - the lodge has by-laws, minute books, bank account, signing officer, owns property, has clear membership guidelines - judge made an error by citing Slattery What is the legal status of an unincorporated non-profit organization? - was deemed not to have a separate existence from its members - CCLC a.609: in order to inherit it is necessary to be civilly in existence at the moment the succession devolves - 1965 CCP was modified to give any group of persons associated with the pursuit of a common purpose certain legal status - Hard to tell what the legal status is - Members grant the officers and directors general mandate to administer the affairs - the property of the association does not belong to the members who are not in a position to demand division or distribution - judge will determine whether the parties are in pursuit of a common objective - have to look at the intention as well as the activities being carried out - concludes based on jurisprudence: o an unincorporated non-profit association formed by a group of individuals to pursue a common aim has some but not all the attributes of a juridical personality o when individuals get together to form such an association they may adopt by-laws setting up an administrative group to manage the affairs of the association o the board and its officers may be given a wide range of powers - Right to inherit o Well-known association all around Western world 54 o Has been given the right to defend any action in law, the right to manage its own affairs, the right to acquire and dispose of property o Has to also have the right to inherit o The legislature and the court in recognizing that an association may own property and be the object of seizure are implicitly admitting that they have patrimony o To inherit simply means to acquire property o All that needs to be done to give effect to the will of the testator is for the association to appoint officers to represent it and execute the necessary instruments o He was a member for 16 yrs and is grateful o He can give his property to them o Will is valid o Lodge is capable of inheriting but the foundation cannot because it had not been named in the will Fourmier: QCCS4473 - association unable to inherit under 617 because it was not in existence - founded under federal laws which were repealed and replaced by similar laws in QC - QC referred to federal laws - court held that the association never ceased to exist and it went through the same reasoning as Prince Consort; active members, managed funds, held regular meetings, produced financial statements, reported to government entity responsible for supervising could inherit 4. Future legal persons Dame Lyman v. Royal Trust Company, 1916, CS Facts: - made a holograph will but were not specific enough about where the money will go - died with no kids - female plaintiff, niece, is claiming that she should get the part of the will that was ambiguous - persons benefiting must be in existence at the death of the testator and be clearly known to the persons intended by him - not necessary that the legatees be named by name - class of people to which they belong be sufficiently designated to enable their identification to be made - Legacy for the establishment for the Montreal Public Library, missionary purposes, and for Tuberculosis league - the bequest is null on the grounds of vagueness and uncertainty - “or similar work” is too vague - Library does not exist and the missionary purposes is to vague - Court cannot make a will for the testator - privilege belonged to him alone - Null and void on the grounds of vagueness and uncertainty - Lyman v. Royal Trust - This case would have been entirely and completely decided differently - could have been salvaged under the cipree doctrine 55 - No discussion of a.869 CCLC: old article which pre-dates articles on trust - may have been possible to salvage these that the executor has the duty to carry out these charitable purposes Topic 9: Future Legal Persons Introduction to Trusts - as early as 1879: statute was enacted to incorporate trusts in CCLC to 981 and following - Single most contested question under the CCLC was ownership - CML trust is based on the division btw legal title (trustee) or equitable title (or beneficial - held by the beneficiary) - Solution was to see title transferred to the trustee and imposing an obligation on the trustee to use the title for the benefit of the beneficiary and in accordance with the terms of a trust - Royal Trust v. Tucker: SCC decided the trustee had sui generis ownership - this case has been overturned by the CCQ but still good law on other points - the sui generis right of ownership was deficient b/c ownership is classified as a subjective right meaning that it exists necessarily and exclusively or the benefit of the person holding it - distinction btw rights and powers - CVL signifies that the trustee has the duty to act in the interest of someone else and to account for what he does on that basis - Relationship of the trustee to the trust property is a power, the trustee is invested with the power to act on behalf of others - he is a fiduciary Constitution - Who has title to the trust property? - 1260. A trust results from an act (juridical) whereby a person, the settlor, transfers property from his patrimony to another patrimony constituted by him which he appropriates to a particular purpose and which a trustee undertakes, by his acceptance, to hold and administer. - 1261. The trust patrimony… constitutes a patrimony by appropriation, autonomous and distinct from that of the settlor, trustee or beneficiary and in which none of them has any real right. - 1265: acceptance of the trust by the trustee divests the settlor of the property…charges him with seeing to the appropriation and admin…sufficient to establish right of beneficiary o Curan & Davis: not the beneficiary acceptance that mattered but it was the trustees acceptance that constituted the trust. Mortimer Davis had set up a trust by deed of donation and reserved the income for life for himself but at the time he had a wife and an adopted son. The terms provided, income for him and then on death to his wife and son. Davis attempted to revoke the benefit on his adopted son before the son could have accepted it (before he died) court said the trust had been perfected by the trustees acceptance. o Tucker: She attempted to void the trust by saying that at the time she created it, there were not children and t/f no acceptance. Beetz said no, the trustees acceptance was sufficient to make the trust irrevocable. - 1275: settlor may not act as a trustee unless it is jointly - must act with someone who is independent - 1277: The court may…appoint a trustee where the settlor has failed to do so or where it is impossible to appoint or replace a trustee. - 1281: settlor can reserve certain rights to receive the fruits and revenues where such is the case, the capital of the trust, even a trust constituted by gratuitous title, or share in the benefits it procures. 56 - 1262: modes of creation of trust: contract, by will, operation of law, by judgment ( CCLC just by will or gift) Tripartite classification: personal trust, private purpose, social trusts a.1263: No registration requirement for the establishment of the trust in QC except for a trust which is detained to secure an obligation Registration Requirements Modalities - 1271: A personal trust constituted for the benefit of several persons successively may not include more than two ranks of beneficiaries of the fruits and revenues exclusive of the beneficiary of the capital; it is without effect in respect of any subsequent ranks it might contemplate. - 1272: if you want to delay the opening of a trust it is limited at 100 year anniversary - three types of trusts (a.1266) o personal: benefits persons set up by gratuitous title and may only be temporary o private: private person such as erecting a monument or setting up a scholarship (can also be social utility) by gratuitous or onerous title for private trusts for commercial purposes may be temporal or perpetual o social utility: for charitable purposes, educational, cultural - importance of classification is to determine the duration of the trust and mode of creation Settlor? - 1260: has to be a (legal or physical) person CANNOT be a partnership or a trust - trustee is holding property for the benefit of others and that is why he is classified as an administration of property of others - Trustee has obligation and duty to perform on behalf of the trust, the beneficiaries and the trust property - fiduciary relationship - CCQ is a default regime so the settlor is free to set the parameters of the trust and establish the rules and modify the rules as he wished - very few public order provision in trust law or in admin of property of others - can you name more than 2 ranks? Trustee 1278. A trustee has the control and the exclusive administration (does not mean they cannot delegate or engage others, but his is ultimately responsible- title is drawn up in his name like an owner) of the trust patrimony, and the titles relating to the property of which it is composed are drawn up in his name; he has the exercise of all the rights pertaining to the patrimony and may take any proper measure to secure its appropriation. A trustee acts as the administrator of the property of others charged with full administration. - a.1299 and following: - simple administration o conservatory form of admin aimed at allowing the liquidator to stay in a holding pattern until the estate is liquidated o liquidator o need authorization of the beneficiary or the court to act as an owner - Full administration (1278(2)) o Administering property over a long period of time o Give trustee as much flexibility to deal with situations that arise over a long period of time 57 o Trustee is viewed as being a type of owner o Attributes to the admin the same powers and abilities that an owner has o trustee - 1316: An administrator may sue and be sued in respect of anything connected with his administration; he may also intervene in any action respecting the administered property. - trust cannot be a party to a litigation - trustee must be the party - Trustee duties and obligations can be vastly customized by the settlor Public Order Provision a. 1309. An administrator shall act with prudence and diligence. He shall also act honestly and faithfully in the best interest of the beneficiary or of the object pursued. 1310. cannot exercise powers in his own interest or that of a third person or place himself in a position where his personal interest is in conflict with his obligations as administrator. 1311. An administrator shall, declare to the beneficiary any interest he has in an enterprise that could place him in a position of conflict of interest and of the rights he may invoke against the beneficiary or in the property administered indicating, where that is the case, the nature and value of the rights. He is not bound to declare to him the interest or rights deriving from the act having given rise to the administration. Any interest or right pertaining to the property of a trust under the supervision of a person or body designated by law is disclosed to that person or body. 1312. cannot become a party to a contract affecting the administered property or acquire otherwise than by succession any right in the property or against the beneficiary. He may, nevertheless, be expressly authorized to do so by the beneficiary or, in case of impediment or if there is no determinate beneficiary, by the court. 1313. No administrator may mingle the administered property with his own property. 1314. No administrator may use for his benefit the property he administers or information he obtains by reason of his administration except with the consent of the beneficiary or unless it results from the law or the act constituting the administration. 1317. If there are several beneficiaries of the administration, concurrently or successively, the administrator is bound to act impartially in their regard, taking account of their respective rights. - Canada Trust v. Gabriel: o spouse was the income beneficiary and the children were capital o Canada Trust was asked by the lawyers of the capital beneficiary to diversify the investments o the spouse was worried about investments in equity and wanted Canada Trust to invest only in bond o Capital B said we must diversify o Court said you are equally trustee and the wife has as much of a say o Purpose of the trust was to favour the spouse during her lifetime (intention of the testator) o Court favoured the position of the spouse and said the investments could be wholly in bonds gave a lot of weight to the testators intention o Prior to 1994 case t/f this decision might not be framed in the same way 58 o Illustrates tension btw income and capital beneficiary and the trustee must steer an even course Liability of the trust - 1287: Right accorded to the settlor and his heirs and the beneficiaries and even an interested party, have a right of supervision over the trust for personal trust - 1287(2): In addition, in cases provided for by law, the administration of a private or social trust is subject, according to its object and purpose, to the supervision of the persons or bodies designated by law. - In a sense private and social trusts are unregulated and are in a sense unenforceable which is not a good thing so the public curator has not been given this mandate to enforce social and private trusts - Public trustee is their to enforce charitable trusts - If the trustee is negligent (a.1281, 1290) - 1290: The settlor, the beneficiary or any other interested person may… take action against the trustee to compel him to perform his obligations or to perform any act which is necessary in the interest of the trust, to enjoin him to abstain from any action harmful to the trust or to have him removed. He may also impugn any acts performed by the trustee in fraud of the trust patrimony or the rights of the beneficiary. - 1292: The trustee, the settlor and the beneficiary are solidarily liable for acts in which they participate that are performed in fraud of the rights of the creditors of the settlor or of the trust patrimony. - If the trustee is acting in intra vires any liabilities that ensue b/c of K obs fall back upon the trust patrimony - h/w acting ultra vires his powers, then the trustee engages his personal liability - issue of the validity of the K with the third party: trustee is personally liable to the trust for these prohibited acts but if the trustee has exceeded his powers by entering into a K, the K is voidable h/w the third party might be able to invoke the principle of “powers” to keep the K Who can act for the trustee? - 1274. Any natural person and any legal person authorized by law - In QC only trust company’s are authorized by law and mutual fund companies - 1277: court may appoint a trustee (several) where the settlor has failed to do so. - Lack of a trustee effects its operability not its validity - 1277: at least one who is not the settlor of beneficiary - 1275. The settlor or the beneficiary may be a trustee but he shall act jointly with a trustee who is neither the settlor nor a beneficiary. Discretionary trust: - class of beneficiary - Allows the distribution of income and capital to be controlled - Way of safe-guarding the family assets for the family in order to distribute them at the appropriate time - If 2 trustees will become too independent, father is made to be the protector - given powers (not in the CCQ) - cannot give him so many powers that the trust becomes a sham - If one of the trustees is not behaving properly, the protector can remove him w/o cause and can add or reduce the number of trustees - 1357-1358: Trustee can resign at any time, Resignation governed by giving notice - may not resign if his resignation would cause prejudice to the property or the beneficiaries - 1332: When there is co-admin, rule is a majority may act unless you provide for unanimous 59 Delegation - 1337: may delegate his duties or be represented by a third person for specific acts; however, he may not delegate generally the conduct of the administration or the exercise of a discretionary power, except to his co-administrators. - 1337 he is accountable only for the care with which he selected the person and gave him instructions. - A trustee may delegate all his powers to co-trustees h/w he may not delegate all his discretionary powers to third parties on a general basis - Absent express language in the trust deed it is debatable whether or not you can sub-delegate - a.1266(2): a trust may be identified by the name of the grantor, the trustee or the beneficiary or, in the case of a trust constituted for purposes of private or social utility, by a name which reflects its object. Apportionment 1345. Apportionment is made in accordance with the stipulations and clear intention of the constituting act. Failing sufficient indication … made as equitably as possible, taking into account the object of the administration, the circumstances that gave rise to it and generally recognized accounting practices. Beneficiaries - 1279: Only a person having the qualities to receive by gift or by will at the time his right opens may be the beneficiary of a trust constituted gratuitously.Where there are several beneficiaries of the same rank, it is sufficient that one of them have such qualities to preserve the right of the others if they avail themselves of it. - 1280: must meet the conditions required by the constituting act. - Tucker: only when your right arises that you need to be in existence or have the necessary qualities - 1261: does not have any real rights - 1284: the beneficiary has the right to require… the provision of a benefit granted to him or the payment of both the fruits and revenues and the capital or of only one of these. - 1285. The beneficiary of a trust constituted by gratuitous title is presumed to have accepted the right granted to him and he is entitled to dispose of it - 1285: Renounce by notarial deed en minute - Even if he has been accepting income, he can renounce, unlike an heir - Right is transferable but not commonly allowed by the terms of the deed - Common to include a stipulation of unseizability (1239) - Inability to transfer a right is covered (1212-1217) - 1212: A stipulation of inalienability is made to a person or to a trust. The stipulation of inalienability is valid only if it is temporary and justified by a serious and legitimate interest. Nevertheless, it may be valid for the duration of a substitution or trust. - 1292 Only has liability if he participates in fraud - not liable for acts of the trustee - 1322: no liability 1322. The beneficiary is liable towards third persons for the damage caused by the fault of the administrator in carrying out his duties only up to the amount of the benefit he has derived from the act. In the case of a trust, these obligations fall back upon the trust patrimony. Tucker v. Royal Trust Company, 1982, SCC - The deed of donation and trust made for the benefit of the donor’s unborn children - some hold that such gifts are invalid - others think they are valid 60 - a.608 CCLC in order to inherit, it is necessary to be civilly in existence at the moment when the succession devolves thus the following are incapable of inheriting: persons not yet conceived and infants who are not viable when born Issue: Does the acceptance by the trustee suffice to render the creation of the trust irrevocable or must the beneficiary accept? - Acceptance by the beneficiary is necessary - Acceptance by the trustee suffices to make the creation of the trust irrevocable - Who is the owner while the trust lasts - One theory says is it owned by the person who owns the property conveyed to him in trust - If this is true than the trust at issue in this case would be void since for a certain period ownership of the property in the trust would have been vested in no one - Can also say the trust property is owned by the trustee this has been supported judicially - Can also say there is a quasi-personification of the trust, which becomes an authentic institution and the property conveyed in trust is owned by this institution - Can say trust is a patrimony not vested in a person or a patrimony of assignment to a purpose (Cantin Cumyn) - Most recent theorythe powers of a trustee over trust property are said to constitute a dismemberment of the ownership, the ultimate beneficiaries of the trust are owners under suspensive conditions and the grantor of the trust or his estate are owners under a resolutive condition - Migneault’s theory: the grantor is no longer the owner of the property conveyed in trust: if it is a testamentary trust, he is dead, and if it is a trust created by way of gift inter vivos, it is essential to its validity that the grantor has actually and irrevocably divested himself of the property conveyed in trust - When the property held in trust is finally conveyed to him, the trust terminates - Cannot give a gift inter vivos to a child not yet born - Purpose of introducing gift and legacies by way of trust into the law of QC was to remove constraints by taking away their justification - One of the primary purposes of the introduction of the trusts into Quebec law was to enable individuals to do by gift inter vivos what it was already possible to do in part by will, including the creation of a benefit intended for a non-existent person - If the primary gift that to the unborn children is valid - The deed of donation and trust made to the benefit of the donor’s sisters is not incidental to the primary gift - The condition accompanying the deed of donation and trust is not the donor’s death but the absence of any issue of the donor at the time fixed by her for the trust to terminate - The donor has actually and irrevocably divested herself of the trust property which she has conveyed during her lifetime, thereby conferring on her father and sisters a suspensive right which she can no longer take back - Deed of donation and trust made to the benefit of the donor’s sister’s is valid Royal Trust Corporation of Canada v. Webster, 2000, CS Fact: - Webster and wife created a trust for the benefit of their son on Feb. 20, 1942 when he was 11 yrs old - His mother accepted the trust on his behalf - Same day, the parents created similar trusts for their other 2 kids 61 Trust provided that Donald, the son (1st rank-income), would collect and receive revenues from the trust until he died at which point the trustee would continue to give the money to Donald’s children (2nd rankincome) in equal share - When they all die, the trustee can divide the remainder among their children’s (issue by roots) - Thus, Donald and his children would get income and Donald’s grandchildren (3rd rank - capital), the remaining capital - If Donald died, his wife would receive the revenues until her death (is this a new rank?) - But in this case, she renounced her right to the revenues Issue: Did Madaline become an income beneficiary of the second rank upon Donald’s death, not withstanding her renunciation and the fact that she never actually received any income form the Trust Held: No Reasoning: - Even if M had received revenue from the trust she would have received it as representative of her husband or in an extension of his status as a first ranking revenue beneficiary - Did not intend that the spouse of the deceased revenue beneficiary would create a separate rank of revenue beneficiaries - Any such spouse merely occupies and extends the same rank of revenue beneficiaries as his or her deceased husband or wife - In the law of substitutions each institute is the owner of the property of the substitution subject only to the obligation of turning it over to the second institute or the substitute upon the expiry of the term of the substitution - A.932CCLC was replaced with 1221CCQ which contains substantially the same wording except for the word ranks - The word rank is meant to encompass both the concept of group and degree - 1221 is no longer applicable to trusts - a.1271 applies to trusts specifically - The concept of ownership which is inherent in the institute of a substitution no longer applies to the revenue beneficiary of a trust - The third revenue beneficiary of a trust is not necessarily the capital beneficiary of the trust and the rule in Masson does not apply (only have 3 rank and t/f the last is the capital) - Testator intended that the grandkids get the capital and the deed should be interpreted to have that effect - Madalin is not a second rank - Even if she were considered a new rank (which she was not) the grandkids would still get the capital and the income would skip over the kids since he named them capital beneficiaries explicitly. - Substitutes 1221. A substitution may not extend to more than two successive ranks of persons exclusive of the initial institute, and is without effect for subsequent ranks. 1241. Where it is stipulated that the share of an institute passes, on his death, to the surviving institutes of the same rank, the opening of the substitution takes place only on the death of the last institute. Trusts 1271. benefit of several persons successively may not include more than two ranks of beneficiaries, exclusive of the beneficiary of the capital; 1272. The right of beneficiaries of the first rank opens not later than 100 years after the trust is constituted In no case may a legal person be a beneficiary for a period exceeding 100 years, even if a longer term is stipulated. 62 Guy Fortin, How the Province of QC Absorbs the Concept of Trust - offers the possibility of transferring property for the benefit of third persons who are not granted ownership of the property and at the same time, the possibility of subjecting this property to the administration and control of the settlor or of another person - trust in CML and in CVL does not have legal personality - they are not contractual in nature - once a trust has been created, the settlor cannot withdraw right which have been granted to the beneficiaries, unless power to do so has been expressly reserved CML Trust - trust creates a fiduciary relationship btw the trustee and the beneficiary - the property must have been acquired by fiduciary - fiduciary or trustee of a CML trust has a right in the property held in trust CVL - involves a patrimony by appropriation which consists of property transferred to the trust and whose possession and administration are entrusted to a trustee or to a group of trustees - a.1262 states that a trust can be created by contract, will, a judgment, the operation of the law but the juridical entity that each of them create represents something different - owner of property has expressed an intention to assign a particular purpose to the property which ensures that the settlor is divested of the property - the settlor than has not real right in the new patrimony - ownerless - the trustee does not exercise the same rights as the owner as defined in a.647 - trustee has the responsibility to hold and administer the property but is not considered an agent - during the trust the beneficiary has not real right in the turst but has a personal right to the benefit or the payment Settlor - intention provides the justification for the appropriation of the property - may be involved in the administration of the trust - a.1260: settlor represents the actor who transfers property from his patrimony to another constituted by her - expressed through an intention with a particular purpose - intention represents the core of the trust - once it has been transferred it is beyond control of the settlor - trustee is not the debtor to the beneficiary - settlor may be connected to the trust Trustee and the Fiduciary Mission - trustee is the central figure of the trust - settlor or beneficiary can be the trustee - responsibility to see to the appropriation and the admin of the property held in trust - only exists at the date of acceptance by the trustee - in CML the trustee has ownership in CVL they have power relationship - must preserve the property and make it productive, increase the patrimony or appropriate it to a purpose where the interest of the beneficiary so requires - a.1308: must comply with the obligations imposed by law and the constituting act - cannot be in a position of conflict of interest - cannot join his property with the trust - can sell as a trustee not as an owner 63 - trustee is not liable for loss that is an act of god or from its deterioration Beneficiary - a.1265: the acceptance of the trustee is sufficient to establish the right of the beneficiary with certainty - has a right to demand payment - or benefit - can supervise the trust - not the same as an ordinary creditor - rights can be transferred and can be seized by the beneficiary’s creditor, unless the constituting act states otherwise - situation varies depending on type of trust - personal trust: right to claim what the constituting act has granted to him - discretionary trust: are only potential beneficiaries - social trust: public has no right to the benefits arising from the trust - power of appointment can be conferred on the trustee Types of trusts - can be created by K, will, law and by judgment - personal trust is constituted gratuitously for the benefit of a determinate number of people - private trust is created for the object of erecting, maintaining or preserving a thing or for the utilization of a property for a specific use - social trust is constituted for a purpose of general interest - a.1263: security trust can be used instead of a hypothec - no specific form of K is required - any person may constitute a trust - can be a natural person or a corporation Security trust in the CCQ - involves at least 2 beneficiaries: the creditor of the obligation which the trust is created to secure and the residual who will receive the residue of the trust property when the secured obligation has been satisfied The corporation, the CML trust and the trust in CVL - Corporation o Person who contracts has recourse against the corporation o Shareholders are not responsible for the debt of the corporation o Possesses juridical personality distinct from its shareholders - CML Trust o Trustee can limit personal liability to the value of the property held in trust o Recourse against the assets of the trust is only be way of subrogating and only to the extend that the trustee has a right to be indemnified from these same assets o The creditor has recourse against the assets of a trust only to the extent that the trustee acted within the limits of his/her powers as a trustee in contracting debt - CVL Trust o Not personally liable towards third parties with whom he/she contracts if acting within the limits of her role as trustee o Responsible subject to the rights of third parties against the trust patrimony o If she exceeds her powers can be responsible to third parties o Beneficiary is not responsible for the injury caused by the fault of the trustee in the exercise of his or her functions - Revenue and Capital of a trust in QC CVL o A.1345 CCQ: must be made in accordance with the stipulations in the constituting act o Or as equitably as possible if nothing is specified 64 - o A.909 and a.910: distinction btw income and capital o A.1346-1350: guide to trustee to resolve administrative problems o Sale price of an asset is also part of the capital o Interest is considered to be income o Dividends are also income Modification of the trust o A.1294: where a trust has ceased to comply with the intent of the settlor, which make the purpose of the trust impossible, the court may terminate the trust o To modify a trust a motion must be presented to the SC The Quebec Law of Trust - trust comprises a separate patrimony by appropriation - all cases in this article deal with personal trusts created by gifts or bequests - Webster case: highlights CCQ articles that trust and substitution are different - Highlights the significance of a.1261 which removes the ownership of the trust property from the revenue beneficiary and the trustee and establishes it as a separate patrimony - Autonomous and distinct from the trustee, the beneficiary and the settlor - Webster Case o Court concluded that kids were in the second rank b/c Donald’s wife was an extension of her husband o The kids were arguing that there could only be three ranks and so the wife was 2 nd, they were 3rd and t/f got the capital instead of there kids court rejected this - Masson case o Theory that whoever is in the third rank is entitled to the capital of the trust - based on Masson case o A.932 of the CCLC limits the duration of a substitution to three degrees - court applied this rule in a situation of trust (1912) o A.932 used to provide that substitutions could not extend to more than two degree exclusive of the institute - applied this rule to trust in Masson - Dawes Case o Held that trust could not continue beyond the lifetime of Mr Dawes’ daughter who was a revenue beneficiary in the 2nd degree - Carruthers Case o Also limited the trust to 2 degrees after the institute o The beneficiary who would actually come into enjoyment of a portion of the revenue after two other beneficiaries had successively received revenue derived from the same fund or property would become the absolute owner of that part of such fund or property from which the portion of revenue which would otherwise enjoy would be derived - In all these cases judges applied a.932 the result that trusts were limited to 2 degrees of revenue beneficiaries and the 3rd degree got the capital - 1221 does not apply to trusts Substitution - Major difference btw trust and sub is the concept of ownership - In sub the institute(s) are the successive owners of the property - subject to the obligation of turning it over to the second institute or the substitute upon the expiry of the term of substitution 65 - Institute in each degree is the owner of the property of the substitution subject to deliver it to the substitute - Curran v. Davis Case o Court found that trustees were given a kind of right of ownership temporary and limited as to its effects - Tucker case o Trust was perfected by the consent of the trustees alone o Barbara Tucker reserved the income of the trust for herself during her lifetime with the capital going to her children on her death o She was unmarried and did not have any children when the trust was created o Although she later married, and had four daughters she brought the action to have the trust dissolved on the ground that she did not have any children at the time of the creation of the trust o Relying on the judgment in Curran: Ownership cannot remain in suspense The grantor is no longer the owner of property conveyed in trust Ownership is not vested in the beneficiary of the income, who is only a creditor of the trustee Not vested in the capital beneficiary The trustee has a sui generis property right - Fyshe Case o It is clear that when a donor by deed or gift inter vivos 981 has irrevocably divested himself of property conveyed to a trustee the conyenance becomes complete and final upon acceptance by the trustee alone , and there is no need for acceptance by beneficiary until such time as he might be called upon to receive the benefit of the trust o Beneficiary can be unborn o Acceptance by the trustee is sufficient to divest the donor - no acceptance of the beneficiary is required - Todd case o Even if the testator used the term ownership in article four and even allowing for a limited power of appointment she granted to her daughters, we are left with a will in which the testator expresses the clear intention to convey her property to executors and trustees in trust o She gives the executors and trustees the fullest powers of administration and control over the trust property while the trust lasts - Separate Patrimony - Trustee is the owner of the trust property - 1261: patrimony by appropriation - Now the trustee does not own the patrimony (as in Curran, Tucker, Fyshe, Todd) - The concept of ownership that is inherent in the institute of a substitution no longer applies to the revenue beneficiary of a trust - Third revenue beneficiary in a trust is not necessarily the capital beneficiary Holt Case - QC SC held that the 3rd rank of the beneficiary were entitled to the capital - In this case, the capital beneficiaries were not designated in the trust deed either by name of by generation - Important distinction from trust in the Webster case, where the settlers specifically stated who were to be the capital beneficiaries of the trust 66 CCQ 1221 and 1271 - A.1221: substitution articles state that there can be only two degrees or ranks, exclusive of the institute the substitute in the third rank becomes the absolute owner of the property - A.1271: can only be two ranks of beneficiaries of the fruits and revenues, exclusive of the beneficiary of the capital - Trust: 2 people get income and then the designated one gets the capital - Does not have to go in order - Substitute: first 2 people in the rank get income, third gets the capital, fourth gets nothing - In the Webster case, had the court decided that the wife was a second rank beneficiary, then it would have skipped over the children and they grandkids would have still gotten the capital (the complainers would have gotten nothing) - Cogne: found that if the revenue beneficiaries are the owners of the property it is a substitution whereas if they are only entitled to the revenue it is a trust - Todd: where the will gives the income beneficiaries no access to the capital and virtually no powers of administration or control of the capital, as is the case here, and where it requires that the capital is to be administered by executors and trustees until it is finally distributed to the testator’s grandchildren, I am of the opinion that a trust rather than a substitution was intented Roy v. Bagnoud, 2005, CA Issue: Do the RRSPs create a pension or a trust? Norberg decisions (SC, 2006 and CA, 2007; SCC leave to appeal) - Enormous mutual fund fraud - Numerous mutual funds that had been set up - Some established under law of ON and some QC - Depending on the type of investments in each of the funds - There were corporate trustees dealing with these trusts and Vincent Lacroix and his back office people were jiggling the figures so - Unit value was being changed - Lacroix was using these funds in his personal bank account - Series of the mutual funds that cannibalized and very little value remained in these funds - Other were non-cannibalized - Mutual funds were set up as trusts - When all of this surfaced and the fraud became evidence - hired liquidator Ernst and Young - How should they be distributed? o Some wanted a global distribution o Liquidator decided it should be a fund by fund distribution o Court decided they are segregated funds - patrimony by appropriation and concluded that it should be on a fund by fund distribution o Which ever approach you took there would be a certain inequity o Court analysed a QC trust - patrimony by appropriation o Each set of investors were given a amicus curiae in order to both arguments could be presented 67 Suzanne Pacini v. Talpis - A trust that had been established under the laws of California by a unilateral declaration of trust - IM property held by the trust held in QC - worried that there would be a title problem - IM held in a trust that we do not recognize in QC - Court said it is governed by the law of CA in all respects even with regards to the IM in QC (3107: conflict of law rule dealing with trusts) Topic 10: Powers of Appointment - Power of app is a power to appoint beneficiaries or to determine their shares or both - it does not confer any rights in property - Class must be determinable by the donor or the settlor, testator - class general comprises some descriptive words (ex. lawful issue, bothers and sisters, nieces and nephews) - determined or determinable members - 1282. The settlor may reserve for himself the power to appoint the beneficiaries or determine their shares, or confer it on the trustees or a third person. - 1282(2): In the case of a social trust, the trustee's power to appoint the beneficiaries and determine their shares is presumed. - 1282(2): In the case of a personal or private trust, the power to appoint may be exercised by the trustee or the third person only if the class of persons from which he may appoint the beneficiary is clearly determined in the constituting act. - 1283. The person holding the power to appoint the beneficiaries or determine their shares exercises it as he sees fit. He may change or revoke his decision for the requirements of the trust. He may not appoint beneficiaries for his own benefit. - Codifies two cases (Brody and Todd) - There are two kinds of power of appointment: general and limited - Todd v. Todd: o Limited power of app o 3 daughters were given a limited power of app - they could direct how the capital would be distributed among there own children o Issue: Whether it was a substitution or trust? o Just b/c they were given a power of app does not mean that have ownership of the capital - Problem: general power or unlimited power of app. (valid in CML) - no indication of class (can appoint anyone including himself) - income beneficiaries usually given the power to decide in their will to whom the capital of the trust will be distributed - In 1989 QC CA delivered a disastrous opinion: Brody: - Royal Trust and 2 kids were the trustees Issue: Validity of the power of appointment that had been granted to the son and the daughter. - The testator created a trust in which the wife got it until death when ½ would be given to son and daughter and got a power of app. - Child was given a general power of power of app - If the power of app was not exercised there was a default position that it would distributed to the issue equally 68 Held: The Court objected on the basis that such a power of app is an abdication of the testator’s will-making power. Distribution has to be the work of the testator. Also infringe the principle of certainty of beneficiary (838 CCLC). Court said we have a power of appointment which infringed these two principles t/f it is null and we strike it down - Insistence by the court on the principle of certainty of beneficiary ignores the issue of presence of the trust - once you impose a trust structure, the settlor has disposed in favour of the trustee for the benefit of beneficiary - Ignored Tucker and the issue of unborn beneficiary - Viewed it from the vantage point of will and gift not trust - ignored the fact that the will was the launcher and the rocket was the trust - Trust exist in its own right even if the instrument for which is its created is a will - Trust was constituted - beneficiary need not be in existence at the moment (Tucker) - The appointer is not disposing of property - the settlor has already disposed to the trust - Brierely: power of appointment (read it carefully - power of appointment) o When the appointee is given the power of appointment he may or may not exercise this power o Trust powers may be imperative obligations whereas powers given to a appointer is merely a discretion - the power of appointment ( what happens to the trustee) is essentially in the discretionary trust - trustees have discretion as regards to whom, how much, how, when and in what form income or capital or both are paid to the beneficiaries - trustee is given the ability to pay income to the class of beneficiary in such time and in such proportions as the trustee deems advisable or necessary - trustee may exclude certain beneficiaries - it depends on how the trust deed is granted - the most often cited reason for the use of the discretionary trust is for tax advantages - Trustee can monitor thresholds and make payments to make adequate supplements respecting the regulations under the Income Security act - Power of appointment was given to an income beneficiary - given the power to appoint the capital of his/her share by will - The courts found this offensive o Abdication of will making power and infringes on principle of certainty of beneficiary o Relies on the notion of delegation of power - does not bestow any proprietary entitlement - mere power - no obligation to exercise it - class of expectant beneficiaries are candidates and they have no rights that they can enforce against the appointer (what happens if they do not exercise their discretion?) - In CML: special/limited power: exercisable in favour of a specified class of persons which does not include the donee or his heirs, his estate and creditors “lawful issue” “among my children” general power: exercisable in favour of anyone - appointment at large enables the donee to appoint anyone other than certain specified persons - General power was commonly used in QC, found in wills prior in 1994 - Validity of the general power was questioned in 1968 in Dore v. Royal Trust - court found for its invalidity - Question was settled in 1989: Brody case (CA) - general power was seen as a violation of a.838 CCLC which called for certainty of beneficiary and court conferred the will making ability on a third party - Beullac court applied an equitable solution and applied the testators intention to avoid an intestacy and allowed the capital to fall into the residual estate 69 - Rodrigue: with respect to subsidiary scheme was correct Poitras: decided in 1998 - tempted not to go with Broady but felt compelled to. Court found that the power of app was invalid - deemed the subsidiary scheme to be unwritten Certainty of beneficiary - Manoli case: struck down legacee b/c of lack of certainty (gouvernement) - Lyman: also a case of uncertainty and vagueness that cause the legacy to fall - Ross v. Ross: testator had conferred on his brother the power to distribute part of the state among “poor relatives” - poor too vague and uncertain (a.838) t/f must be rejected. Relative was ot be construed as excluding all except those entitled to receive upon an intestacy - part of class salvaged - Beneficiary had to be ascertained or ascertainable which required for certainty in the description of the class - If the power had not been exercised the court could not have ordered an equal distribution b/c the QC courts have no competency in this regard 1261. The trust patrimony, consisting of the property transferred in trust, constitutes a patrimony by appropriation, autonomous and distinct from that of the settlor, trustee or beneficiary and in which none of them has any real right. 1284. While the trust is in effect, the beneficiary has the right to require, according to the constituting act, either the provision of a benefit granted to him or the payment of both the fruits and revenues and the capital or of only one of these. - Seems like these two articles, right to claim against the trustee is only in the case of an express trust not a discretionary trust - Courts have shown general reluctance to interfere in the exercise of discretion by the trustee unless bad faith - Dore v. Brosseau: court states it would not interfere - also in Ross - Fox v. Fox (ON): court has interfered with the improper exercise of the power - testator appointed his wife as the trustee and provided her with the power of appointment to distribute to there son and the issue - son married outside of the family faith so the mother gave it all to the grandkids - son succeeded b/c it was motivated by bad faith - Provision in the s.1316 Admin of Property of Others - trustee may sue and be sued in connection with anything in his administration - court will not entertain hypothetical - can seek some direction from the courts - Content v. Mercier: court went quite far, if failed to make a distribution the court would do it Ross v. Ross, 1896, SCC - deceased domiciled in city of Quebec but while temporarily in the city of NY made the following will - left all his property to his brother, Frank, half of which is to be used for public protestant charities in Quebec say The Protestant Hospital Home, French Canadian Mission and among poor relatives as he may judge best, the other half to himself as for his own use except for $2000 that will be sent to Miss Mary Frame Issue: Should this will be set aside for uncertainty? Held: action to set aside the will for uncertainty was dismissed Reasoning: 70 - not called upon to interpret the legacies but to this extent we must interpret it in order to ascertain if the parties had a right to intervene then intervention of William Russell Ross must be dismissed because he has no locus standi to maintain it the gift to poor relatives is not an absolute gift to the objects the testator intended to benefit, but right interpreted as conferring upon Frank a faculty selection among persons coming within that description Could William have possibly derived any benefit from this disposition? Court had to interpret “poor relations” Poor is uncertain and must be rejected Relations must mean heirs at law William is not an heir at law, he was cousin and t/f has no standing - his intervention must be dismissed “Morrin College” does not come within the description of charitable institution - if Frank chooses this institution to benefit under the will, it would have to be struck down “Finlay Asylum”; Frank could select this institution as a beneficiary which gives the institution a right to intervene What do we mean by “poor relations”? Legacies to poor parents is null for reasons of uncertainty In all legacies there have to be 2 things: the things bequeathed and the person to which the thing is devised The testator has to explain with certainty To be valid, has to be the direct expression of the testators will - cannot be left to the will of 3rd parties Cannot designate an heir or a third party to the role of designated the estate All legacies made to uncertain persons have to be null (where the individuality has not been determined by the will He court does not have a right to distribute the will in the province of Quebec The will has to be declared valid and good Recognized to its fullest extent a testator’s right to confer a power of selection upon a designated person in disposing of a definite portion of his estate, among a defined class, designated as poor relations (rejected the word poor) Dore v. Brosseau, 1904, CA - Dr Brosseau died on October 6, 1900 - He directed his estate which he estimated at about $50,000 should be converted into cash by his two testamentary executors, Belanger and Pare and then handed over for administration and distribution to his brother Casimir Brosseau and his nephews Dore and L. Brosseau - Disputed clause of the will giving to the trustees or majority of them, a right of selection of beneficiaries among the most needy of the brothers, sisters, nephews and nieces - It is an absolute bequest b/c it unconditionally imposes upon the trustees the duty of divesting themselves and the estate of surplus referred to - limits its application to a well defined and restricted class - a class the courts can determine - A bequest to A or B at the discretion of C is good - Principle of power of selection has been fully recognized by our courts (McGibbon v. Abott, Ross v. Ross) - Condition of selection may be problematic 71 - Testator exercised his own choice in the appointment of those who should have the power of selection according to their discretion No evidence of fraud or bad faith which would merit interference from the court Exercise of their discretion should not be interfered with Constant v. Mercier, 1890, CS - Deceased spouse is bequeathed a usufruct for life for all the deceased’s immoveable property. - On wife’s death the balance is to be liquidated within a year by another executor, Mercier, and given to the poorest of deceased’s blood relatives. - Wife dies and the executor liquidates the property but at the end of the year still has money left over. - Constant, the deceased’s sister, wants the residue of the estate, arguing that the executor no longer has the ability to distribute the money and argues that his mandate was for only a year after the wife’s death. Issue: Is the plaintiff, Constant, entitled to the residue as the heir at law? Held: yes Reasoning: Brodie v. Royal Trust, 1990, CA - Heather and Hughes Brody were the kids of the deceased, William Brodie - Clause 4 of the will: gives his property in trust to his wife and to Royal Trust to give her the revenue and interest while she is alive - When she dies half of the property shall be divided btw the kids and the other half would be conserved and the revenue will be used would be use to satisfy the alimentary and educational needs of the kids until the age of 21 and then to pay them a revenue until 30 yrs and then half of the part of the each child would be paid to them as well as the revenues of the balance - When the die, the balance can be bequeathed liberally by the testators - the kids were named co-executors and with the Royal Trust Company as the co-trustee after the decease of the wife - decisions had to be made as a majority with the Royal Trust being part of the majority - half of the goods were left to distribute up to the discretion of the co-executors - they disagree as to how the estate should be distributed and that Royal Trust be replaced - SC grants the request and the RT appeals - Difference of opinion btw the co-executors and the co-trustees - The plaintiffs wish to replace the respondent with another suitable executor within whom they might be able to agree to carry on with the execution of the deceased testamentary dispositions and continued admin of the estate - They agree that a friend of the family and accountant should take over, Stephen w. Sewell Issue: interpretation of clause 4 of the will? Reasoning: - The testator did not designate a specific class of people to which the kids could designate the balance of the estate - Need a sufficient cause to replace a executor - cannot be b/c they disagree - Has to be a prejudice to the succession - not enough that there is a mere difference of opinion - The goal of the testator was to create a trust 72 - They disagree on the interpretation of clause 4 Beneficiaries need to be identifiable at the moment of the decease of the testator (a.838 CCLC) Need to at least define the class of people Discretion can be exercised within a determined category - if not invalid Clause 4 gives the right to the son and daughter to testate in the place of the testator - did not assign a class of people t/f it is w/o effect and null - The estate ends at the two kids and does not go further Criticism: - trustee has obligations to use powers to implement the ends of the trust - an appointer has mere power that is not tantamount to an obligation - not sure I understand the difference btw a trustee and someone given the power of appoitment - In 1994, Brody decision was codified a.1282 CCQ - Problems: o court ignored Tucker a trust had been interposed t/f the testator disposed of all his property trustee’s acceptance serves to constitute the trust and there is not further disposition from the testator o court ignored the subsidiary scheme: testator says “failing a will the same shall be divided the same shall be divided in equal parts by roots among its issue…” means that the testator has created a subsidiary scheme of devolution so if the power of appointment is not exercised (provided for his grandkids in the subsidiary scheme) upon finding that general power of app was null the court said the subsidiary scheme was also faulty and struck it down these dispositions are alternative, either or, subsidiary scheme is not conditional - only conditions which are impossible or contrary to public order are struck out and deemed unwritten o legal analysis should have been by way of intestacy Court when on to find that the children, the son and daughter were the only legatees validly appointed in the will, and attributed ownership of the capital to them capital has remained in the testator estate indisposed of following the courts reasoning those who would have existed at the date of the testators death t/f Hue and Heather are the intestate heirs. Result is the same but the reasoning is flawed. Kids were designated as income beneficiaries so to transpose them into capital beneficiaries is off-base Same reasoning permeated other decisions after Brody Re Nicholls, 1987, CA, Ontario - An appeal from the judgment of Mr. Justice O’Leary holding that a clause in the testatrix’s will directing the executor to dispose of the residue of her estate in accordance with the dictates and directions given to him from time to time by a named third party was a valid testamentary disposition of the residue 73 - - The words in the clause give Carson Cowan a general power of appointment in regard to the residue so general that he can direct the executor to over turn the residue to him for his own use and benefit “I appoint Carson Wallace to give directions as to the distribution of my estate” She agrees that it was the testators intention to give an unfettered discretion No legal principle that prevents a testator from giving another the right to direct that the testator’s estate be paid to him personally for his own benefit or be paid to such others are he directs Valid disposition of residue Trust General du Canada v. Poitras, 1998, SC Facts: - want a declaratory judgment whereby direction is sought concerning the interpretation of the last will and testament of the late Maurice Chartre and that of his wife, both dated October 26, 1979 - one died in 1992, and the other in 1994 referred to a the grandparents’ wills - the two of the petitioners are the executors, they are two of the grandkids, and the other is the Trust General of Canada - the grandparents left there property to their grandkids in equal shares but should the grandparents die, they can devise their share as they see fit - one of the grandparents did die and decided to vest her share in her husband - this is what is at issue - In the grandparent’s will, could they give a power of appointment to their grandkids w/o specifying the class of people? Issue: Can the last will and testament of each of the grandparents be construed as having created a trust? Reasoning: - if they are not trust wills, transmission en pleine propriete is the rule - in which case, the legatees are vested in full rights of the legacy subject only to the expiry of the term where a term for payment is stipulated or the stipulated distribution age is attained - if the last wills and testaments are to be viewed as trust wills other provisions of law are applicable leading to a different order of distribution Test: 3-4 criteria need to be met for the constitution of the trust: - constitution d’un patrimoine - the transmission of assets by the constituent to the patrimoine - the retention of assets by the trustee and their use or application for purposes permitted by law Indications that it is not a trust - Nowhere in the will is the word trust used - Testamentary executors and not trustees are designated to execute each of the last wills and testaments - The bequest of the rest of the residue of each estate is made to all of the grandkids, not to the testamentary executors, leave alone the trustees Indications in favour of a separate patrimony - Residue of the estate of each of the grandparents is stipulated as being bequeathed equally to the grandchildren with instructions to the executors to utilize the revenues from the share of each estate for their education, maintenance, ect. Until the age 21 with discretion on the part of the executors to encroach on capital for such purposes - Distribution of capital is deferred pending the attainment of stipulated distribution ages - Broad discretionary power is granted to the executors to defer or accelerate such distribution - Closely resemble a trust will 74 - At least as regards the residual assets a trust has been created in each will APPLICATION OF THE PROVISIONS OF THE TRUST TO THE QUESTION OF THE VALIDITY OF THE POWER OF APPOINTMENT - New code prevails in this situation - Under CCLC a.838: refused to enforce a general power of appointment save and except where the class of persons in whose favour such appointment was intended is clearly identified - Also reflected in the CCQ a.1282 1282. personal or private trust, the power to appoint may be exercised by the trustee or the third person only if the class of persons from which he may appoint the beneficiary is clearly determined in the constituting act. - Referred to Royal Trust v. Brodie - Since no class determination is contained in the power of appointment in each of the grandparents’ wills, both stipulations will be set aside as being invalid - Effect is to deem the stipulation unwritten w/o otherwise affecting the validity of the grandparents wills 757. A condition that is impossible or that is contrary to public order is deemed unwritten. Thus, a clause limiting the rights of a surviving spouse in the event of a remarriage or new civil union is deemed unwritten. - Danielle’s inheritance from her grandparents directed in turn by her to her husband by her general power of appointment must fail What then is the appropriate disposition of that inheritance? - The grandparents appoint all their grandchildren are universal residual and equal legatees of their respective estates - The grandparents were even handed in treating all their grandchildren alike - the accretion clause reinforces that intention since it too is limited to grandchildren - There was another clause in the will that said if one of the grandkids died before them or died before getting their share, there share would be divided equally among the other grandkids - The portion that she was supposed to get goes in equal portion to the other grandchildren - What is the validity of the droit d’accroissement? Revocable Trusts - To what extent can it be said that QC had this? - A. 1280-83 - Could be said that we do have a revocable trust since the trustee reserves the right to accept the trust 1281. The settlor may reserve the right to receive the fruits and revenues or even, where such is the case, the capital of the trust, even a trust constituted by gratuitous title, or share in the benefits it procures. - Bare trust: trustee substantially acts as the settlor’s agent - you see this in asset protection - has to be a proper divesting - Blind trust are created for politicians - Montreal Trust v. Donald Dupuis: AM died (1970) and set up a trust for his sister (income); sister died (1971); he provided that when she died the trust property would be divided into 3 parts; wife (income, general power of app., died in 1996, gave it to a charity) & daughter (income + limited power of app. To give among her issue) & son (capital outright, died in 1991) - problem was with the wife, when she died and exercised her general power of appointment that was invalid (Brody) - where does the capital of her share go? When she died in 1996, son was dead, could he take? There was a subsidiary scheme that wife’s capital if she did not appoint would go to the testator’s issue. Would it go back to the estate of the 75 testator it would go the intestate heirs? They would get it in equal parts 1/3. Son could take because he was alive in 1970. Better than trying to salvage the subsidiary scheme. Topic 11: Purpose Trusts - - - - - objective is the advancement of some value or good, promote public good social utility trust private trusts and social trust encompasses what in the CML is referred to as charitable and noncharitable - CML do not recognize non-charitable purpose trust b/c of difficulty of enforceability 1256. A foundation results from an act whereby a person irrevocably appropriates the whole or part of his property to the durable fulfillment of a socially beneficial purpose. It may not have the making of profit or the operation of an enterprise as its main object. 1257. The property of the foundation constitutes either an autonomous patrimony distinct from that of the settlor or any other person, or the patrimony of a legal person. 1257(2): In the first case, the foundation is governed by the provisions of this Title relating to a social trust, subject to the provisions of law; in the second case, the foundation is governed by the laws applicable to legal persons of the same kind. 1258. A foundation created by trust is established by gift or by will in accordance with the rules governing those acts. 869 CCLC was the basis for the creation of numerous institutions (schools, libraries) 1287: with private purpose and social trust the right to supervise is by designated by law so in a sense these social purpose trusts are unenforceable b/c the trustee accounts to no one - only accountability arises under the income tax act Ross v. Ross said it is not for the Superior court to supervise. In Valois the question came up, is it the role of the attorney general as the rep of the state under the doctrine of parens patriae - court said no - no status to intervene to protect undefined beneficiaries - no doctrine fo parens patriae in CVL o Are we restricted to created a social turst by gift or will or can be use other modalities? How general can the purpose be? o 1270. A social trust is a trust constituted for a purpose of general interest, such as a cultural, educational, philanthropic, religious or scientific purpose. It does not have the making of profit or the operation of an enterprise as its main object. Also see Ross v. Ross Hastings v. MacNaughton, 1917 - will was declared void and null b/c of uncertainty - “to some deserving charity” does not clearly show who are the persons the testator intended to benefit Valois v. de Boucherville, 1929 Facts: - women left her the residue of her will to Boucherville whom she named fiduciary legatee for the purpose of distributing the estate - to be distributed as he sees fit to charities of devotional work, for 76 education of young people, alleviate suffering of humanity - would be accountable to his own conscience only in the fulfillment of his trust Issue: Is this null and void for uncertainty? Can the courts intervene to ensure that it is distributed properly? Held: No, No. Reasoning: - a.831 CCLC: accords the liberty to testate - prohibitions, restrictions and other reasons for nullity have to be found in the code - conditions which might be contrary to public order - have to find something in the code which would render cl. 15 of the will null - can look at a.838: the legs are not designated sufficiently and that it is made in favour of indeterminate persons - Abott v. Fraser: you can leave an estate to benefit future institution “permits the appointment of fiduciary legatees for charitable and other lawful purposes - “it is evident that charitable and lawful purposes mentioned in a.899 CCLC was not meant to be confined to trusts only as may be erected for the benefit of some definite person. The use of the word purposes indicates that bequests may be made to uses for general and indefinite recipients so long as the purpose be charitable or lawful, and the bequest be within the limits permitted by law” - Referred to Ross v. Ross o Will was declared valid even though it gave a third party the right to distribute the property in favour of public interest charities… o Poor relations had to be interpreted as heirs-at-law o The nullity of a clause for reason of uncertainty have always made an exception in favour of legatees of charity - Words like “those who need it most” would be sufficient to do the distribution - When you cannot discern btw which organization the testator intended, then you have a problem - For example, if the testator says “to my friend Pierre” and there are 2 Pierres - In that case, it would be null and void since the court cannot decide - If you leave you property to an institution that does not exist and will not exist within a reasonable time (Lyman v. Royal Trust): “an impossibility to apply the property in accordance with the will would in this case arise, if the trustee failed after the lapse of reasonable time to obtain a charter or act of incorporation that in that event the property would pass to the heirs under the above article” (Fraser) - Hasting v. MacNaughton: - Where the testator leaves his estate to a trustee, an executor or a beneficiary to distribute it (for charitable purposes) generally held to be valid - Courts have always made a distinction btw private charity (poor relations) and public charities - Legatee to a charity in general should not be declared null b/c of uncertainty - Can leave your property to a trustee to distribute for the purpose of doing good without identifying particular people: churches, hospitals, charitable institutions, schools - Purpose of a.869 CCLC is to validate legatees in favour of indeterminate persons and for the purpose of charities - Cl. 15 is valid in her will - it falls with a.869 - “to alleviate suffering” may seem vague but have to read the will as a whole - The testator clearly had in mind, general charities as a whole - The general rule is we want to give it the broadest and most favourable interpretation - A.916: she had a right to give discretion to her trustee - not prohibited in the code (a.831) - Quebec law gives the freedom to testate which can only be restrained by the code 77 - She had a right t give her trustee control - he is only accountable to himself The court does not have the right to intervene and to distribute the property Fleury v. Trust General, 1980, SC Summary: - by his last the testator left the usufruct of his estate to his sisters MA and F and directed that after the death of the survivor, his property should be distributed for charitable works - F survived the testator by predeceased MA, leaving her entire estate to the latter - MA sought a declaration that the charitable gift was void for uncertainty and as a result she was entitled to the whole estate - Held: The declaration would be granted a.838 of the CCLC requires that the identity of a legatee be ascertained at the death of the testator - Exception to this rule a.869: whereby a testator may name legatees who shall merely be fiduciary or simply trustees for charitable or other purposes within the limits provided by law - also allows the testator to accomplish a charitable gift by delivering his property to his testamentary executors or by means of charges imposed on his heirs or legatees - In this case, he has not exercised these options, has not conferred a power of appointment and has not extended powers to his executors - charitable works is too vague - impossible to know what the intention of the testator was - did not establish a trustee or an executor - just gave the executor administrative powers and nothing more - gave to no one the faculty to elect, distribute or attribute the property - has to go to the intestate heirs Couture v. Roy, 1995 - Couture (sister and brother-in-law) were designated testamentary executors of Armand Roy’s estate - In the will, the testator wrote that 10% should be distributed to charitable institutions - Liquidators asking the courts to 1. to declare that clause null or 2. to order the executors to distribute the property as they see fit to charities of their choice - New code in applicable but the laws have not really changed - Role of the court is to understand the will of the testator a.704. A will is a unilateral and revocable juridical act drawn up in one of the forms provided for by law, by which the testator disposes by liberality of all or part of his property, to take effect only after his death. - Court does not have the power to intervene when it comes to successions a.1256. A foundation results from an act whereby a person irrevocably appropriates the whole or part of his property to the durable fulfilment of a socially beneficial purpose. It may not have the making of profit or the operation of an enterprise as its main object. - The clause is valid, it is the responsibility of the liquidators who have to execute the final wishes of the testator - The intention of the testator is clear - 10% charity and 90% to a charitable work - The testator gave the executors many responsibilities which implies that they were given the responsibility to choose the charity a.776: The liquidation of an intestate or testate succession consists in identifying and calling in the successors, determining the content of the succession, recovering the claims, paying the debts of the succession, whether 78 these be debts of the deceased, charges on the succession or debts of support, paying the legacies by particular title, rendering an account and delivering the property. a.777: The liquidator has, from the opening of the succession and for the time necessary for liquidation, the seisin of the heirs and the legatees by particular title. The liquidator may even claim the property against the heirs and the legatees by particular title. - It would not be hard for the executors to find a charity to give the money to - They know the testator - interests, etc. and so that can find an appropriate charity - Just has to conform with the CCQ when choosing a charity - Trust instruments often confer discretionary powers on the trustee - seemingly unrestricted terminology - to what extend does it open the door to absolute permissiveness - Some care and attention has to be paid when drafting the introductory paragraph - Are there limits to this discretion? Yes, there are limitations despite the terminology - 1309 1309. An administrator shall act with prudence and diligence. He shall also act honestly and faithfully in the best interest of the beneficiary or of the object pursued. - Sets the standard of care - Uncontrolled absolute discretion is measured against this standard - Discretion cannot be exercised in an arbitrary, capricious or unrestrained manner - has to be just and proper - discretion consist of knowing what is just in law t/f no absolute power Topic 12: Variation of Trusts (Modifying Trusts) - Under CLLC law of trust did not have many control mechanisms - no public authority or supervisor and the court was non-interventionist - CCQ greater role for judicial intervention and action Variation/Termination 1294. Where a trust has ceased to meet the first intent of the settlor, particularly as a result of circumstances unknown to him or unforeseeable and which make the pursuit of the purpose of the trust impossible or too onerous, the court may, on the application of an interested person, terminate the trust; 1294(2): the court may also, in the case of a social trust, substitute another closely related purpose for the original purpose of the trust. Where the trust continues to meet the intent of the settlor but new measures would allow a more faithful compliance with his intent or favour the fulfillment of the trust, the court may amend the provisions of the constituting act. 1293. Any person may increase the trust patrimony by transferring property to it by contract or by will in conformity with the rules applicable to the constitution of a trust. The person does not acquire the rights of a settlor by that fact. The transferred property is mingled with the other property of the trust patrimony and is administered in accordance with the provisions of the constituting act. Termination of Trust 79 1296. A trust is terminated by the renunciation or lapse of the right of all the beneficiaries, both of the capital and of the fruits and revenues. w/o court intervention A trust is also terminated by the expiry of the term or the fulfillment of the condition, by the attainment of the purpose of the trust or by the impossibility, confirmed by the court, of attaining it. Who can apply under 1294? - Any interested person - may have a moral interest, trustees normally don’t take action to terminate but they do have standing, those who have an administrative interest (a.1294, 1295, 1275) - Prevost: Scotia Trust asked the court to reduce the number of trustees from 3 to 1 - rejected at SC and CA - SC said the terms of the will provided that there always been 3 trustees - court did not look at 1294; CA did look at 1294 but the two of the trustees died/sick - the last argued that it did not make sense to appoint - one beneficiaries objected b/c he wanted to be a trustee - seemed not to be in line with the settlor’s intention - Court of Appeal took settlor’s intention literally and did not understand it in light of present day circumstances - If the settlor does not wish any early termination and does not want the beneficiaries to seek early termination - has to be clear in the will - If the settlor would like to leave it up to the beneficiaries to decide, it is quite simple to assert in the deed language - 1295: no requirement of consent of the beneficiaries as opposed to in the CML - even infants and unborn; requires that notification be given to the settlor if still alive o courts do look for a consensual application - beneficiary can say that the settlor’s intent is being defeated by modification or early termination o courts grant motions to terminate if all beneficiaries in agreement. o The moment the court senses dissent, it will not grant the motion (Mermet & Prevost) - Use of renunciation to when creating a trust and the problem that arises b/c of drafting of 1286: what does not appear is the timing of the right of the next beneficiary o is the term expressed in the trust deed still binding? Mother renounces does that mean that the capital interest vests immediately or according to the will? Termination - 1297: At the termination of a trust, the trustee shall deliver the property to those who are entitled to it. Where there is no beneficiary, any property remaining when the trust is terminated devolves to the settlor or his heirs. Marmet v. Marmet, 1999, CS - testator created a trust in 1953 - she gave a usufruct of her property in equal parts to the kids of her brother, Albert - when the last kid dies, the capital is supposed to be distributed equally btw the grandkids of Albert - the plaintiffs are asking in light of the fact that the trust has become too onerous, they want the trust to be dissolved and the money to be distributed equally among the grandkids - by the demand of an interested party, the court can put an end to a trust where it is shown that it is no longer meeting the will of the testator - the court can also modify certain provisions in the constituting act so that the trust does respond better to the will of the testator (a.1294 CCQ) - the trust continues to reflect the intention of the testator 80 - h/w the testator did not intend so much money to be going to the trustee so that court replaces the trustee with a cheaper on - in 1997 the trust made a revenue of $2500 but the fees for the trust and taxes were $2075 - considering the fact that the trust is too onerous, few revenues and high cost, the plaintiffs want to put an end to it - she gives her testamentary -executors the same rights as she would have had had she been alive - it is only at the death of the last living kids of her brother Albert’s that the residue of the capital shall be distributed to the grandkids - the testator clearly wants her property to remain in the family - (Albert and sister get usufruct and his kids only get revenue) - When Albert dies, there are 6 kids who are capital beneficiaries and 26 grandkids (when they turn 21) - The respondents say there is nothing wrong with the trust itself, the problem is the fees of the trustee. They want the court to replace Trust General of Canada with Me Martin Roy whose fees are max $600 - In this way the trust can continue to reflect the will of the testator Issue: Does the trust continue to respond to the will of the testator? - A.1294 and a.1296 1294. Where a trust has ceased to meet the first intent of the settlor, particularly as a result of circumstances unknown to him or unforeseeable and which make the pursuit of the purpose of the trust impossible or too onerous, the court may, on the application of an interested person, terminate the trust; the court may also, in the case of a social trust, substitute another closely related purpose for the original purpose of the trust. Where the trust continues to meet the intent of the settlor but new measures would allow a more faithful compliance with his intent or favour the fulfilment of the trust, the court may amend the provisions of the constituting act. 1296. A trust is terminated by the renunciation or lapse of the right of all the beneficiaries, both of the capital and of the fruits and revenues. A trust is also terminated by the expiry of the term or the fulfilment of the condition, by the attainment of the purpose of the trust or by the impossibility, confirmed by the court, of attaining it. - Jacques Beaulne, Droit de fiducies o 1294 applied when the trust ceases to respond to the will of the testator or where the trust continues to respond to the will but that it can profit from some changes which would allow it to better respond to the will of the testator o 2 options: 1. modification of the trust a. this recourse is possible only where the trust continues to meet the needs of the testator b. can order the change of the number of trustees, raise or lower their responsibilities, can modify a clause which is impeding the realization of the purpose c. court can also take into account economic, social or legislative changes that the testator could not foresee d. purpose is to better meet the purpose of the trust 2. judicial extinction of the trust a. an essential condition has to have been encountered if it is going to operate to judiciously modify the trust - purpose/destination of the trust b. when the objectives of the trust have been met and so the purpose of the trust has disappeared 81 - c. sometimes the court can put an end b/c the environment is no longer conducive to realizing its purpose d. other legal mechanisms such a renunciation may put an end to a trust e. a trust is extinct by a juridical act f. a.1296: trust is ended b/c a term or condition has been met or when its purpose has been satisfied court concludes that the trust continues to respond to the wishes of the testator she wanted the grandkids to get the residue of the capital she had the intention of keeping her property in the family cl. 16 if someone contests this will, he will lose his right in the succession cl. 14 and 15 allow the court to appoint a trustee at the advice of the executors who can act on her behalf she would not want a good part of her patrimony to go the trustees - it is possible to get the same service at a lower cost Stevenson v. National Trust, 1995 Facts: - by notarial will, the testator created two trusts: trust A for the benefit of his son and trust B for the benefit of his daughter - Trust B: - The daughter wants to renounce her rights to the revenue and wants to ask the court whether that renunciation puts an end to the trust and thus would require that the capital be distributed in equal parts to her 4 kids - Trust company says that in the event that one of her kids dies before she does, without issue, which would increase the amount the other 3 get, which would not be possible if the sharing of capital happened immediately - Have to find the intention of the testator - Testator wanted to ensure the financial security of his daughter - The daughter is financially independent and the trust is just complicating her life - the trust company and the government are benefiting, the daughter is only getting a small amount in the end - Testator wants the money to stay in the family and to go to the grandkids when they turn thirty a.1294. Where a trust has ceased to meet the first intent of the settlor, particularly as a result of circumstances unknown to him or unforeseeable and which make the pursuit of the purpose of the trust impossible or too onerous, the court may, on the application of an interested person, terminate the trust; the court may also, in the case of a social trust, substitute another closely related purpose for the original purpose of the trust. Where the trust continues to meet the intent of the settlor but new measures would allow a more faithful compliance with his intent or favour the fulfilment of the trust, the court may amend the provisions of the constituting act. - This article applies b/c based on the circumstances unknown to the testator which render the trust too onerous to pursue the purpose of the trust - Mentality towards women has changed - The testator certainly did not want his money to be going to the trust and to the government - Had he known of the social situation and that his daughter would have been independent, he would have treated both kids in the same way - ordered the end of the trust and the remittance of capital - The daughter renounced to her right in order to benefit her kids which is in line with the intention of the testator 82 Class Notes: - Stevenson v. National Trust: testamentary trust for the benefit of the spouse of the testator, spouse was to receive the income and upon her death the income would be divided - son got capital and daughter got income with a limited power of appointment o She wanted to renounce her right so she could give the capital to the kids o Typical in trust of a certain era to keep the daughter share in trust o Court accepted the argument of the daughter that tax and other costs were too onerous (a.1294) o Judgment denies the testamentary intent of the settlor - grandkids would only get the money on the mom’s death o The judgment mislead the law with respect to the effect of renunciation of the daughter renouncing the revenue and the does not mean the capital should be distributed immediately partition should have taken place in accordance with the will - on the daughters death 1286. If the beneficiary renounces his right, or if his right lapses, it passes, according to whether he is the beneficiary of the fruits and revenues or of the capital, to the co-beneficiaries of the fruits and revenues or of the capital, in proportion to the share of each. If he is the sole beneficiary of the fruits and revenues of his rank, his right passes, in proportion to the share of each, to the beneficiaries of the fruits and revenues of the second rank, or where there are no such beneficiaries, to the beneficiaries of the capital (WHEN?). o Some think you must wait until the time stipulated in the deed Social Utility Trusts - In the case of social utility trusts, the court can substitute another purpose of apply the Cy-pres doctrine: permits the court to modify the original purpose of general interest (1257, 1258, 1270, 1298) 1298. The property of a social trust that terminates by the impossibility of its fulfilment devolves to a trust, to a legal person or to any other group of persons devoted to a purpose as nearly like that of the trust as possible, designated by the court on the recommendation of the trustee. The court also obtains the advice of any person or body designated by law to supervise the trust. - When can you apply the Cy-pres doctrine? o Legacy in trust with a charitable intention going to a beneficiary Property given in trust for the purpose and type of institution named but institution never existed or ceased to exist doctrine may apply Doctrine given in trust for a certain beneficiary doctrine may not apply, unless implied trust found (Lyman) - Survival of the trust can succeed if there is a similar cause o Have to perceive a real intention to create a social trust even though there is no designation of a particular institution that may benefit - If the trust is created to combat Dutch elm disease - if it never existed or ceased to exist we could apply the Cy-pres doctrine b/c there is a general social intention - a.1282: In the case of a social trust, the trustee's power to appoint the beneficiaries and determine their shares is presumed. Disappearance before testator’s deathlapse 83 736. Property left by the testator for which he made no disposition or respecting which the dispositions of his will are without effect remains in his intestate succession and devolves according to the rules governing legal devolution of successions. 750. A legacy lapses when the legatee does not survive the testator, except where there may be representation. A legacy also lapses where the legatee refuses it, is unworthy to receive it or, again, where he dies before the fulfilment of the suspensive condition attached to it, if the condition is of a purely personal nature. Disappearance after S’s death in its patrimony (a.361, a.2279) Pringle v. Anderson, 1914, Court of Review - the plaintiff wanted to have the will declared invalid b/c he claimed that the trustee to which the legatee was left was no longer in existence - court finds that that when the testator died, there were moneys necessary or the payment of mortgages debts on property which the trustees of the church had acquired for the general service of the church - court is of the opinion that the trustees could devote the legacy in question to these purposes and that the fund intended to be benefitied had no disappeared - that the persons intended to be benefited were still in office, and that there was no caducity of the bequest National Trust v. Northside United Church, 1994, ON Court of Justice - the testator divided the residue of his estate to 6 charities, 5 of which were not clear, but the executor resolved the problem with all but one - “The Institute for Crippled Children” - no such charity existed - Will pointed to an intent on the testators part to benefit specific charities connected with local area - The charitable serve of Ontario Society for Crippled Children had a wide ambit which was less hospital focused than the other claimants - worked in the local area - Misdescription did not defeat intent - a clear charitable intent appears on the face of the will - it seems most of the charities were serving local community - court’s responsibility is to give effect to the intention of the testator In the matter of the estate of the late Donald Speirs Dufty v. Raymond Chabot, Inc. 2001, CS - will declares Montreal Trust as executor and trustee of the succession - a.6 says that he gives the residue of his estate to Queen Elizabeth Hospital to be used for medical equipment, etc. - after his death, the Queen Elizabeth Hospital stopped its services - 1995 the hospital stopped its activities and Raymond Chabot, the respondent, is in charge of liquidating the hospital - Technically, the hospital was in existence during its liquidation - Raymond Cabot cannot conform to the wishes of the testator and thus has to return the net product - Cabot cannot use a.361 to choose to give the money to St. Mary’s hospital 361. The liquidator first repays the debts, then effects the reimbursement of the capital contributions. 84 The liquidator, subject to the provisions of the following paragraph, then partitions the assets among the members in proportion to their rights or, otherwise, in equal portions, following if need be the rules relating to the partition of property in undivided co-ownership. Any residue devolves to the State. If the assets include property coming from contributions of third persons, the liquidator shall remit such property to another legal person or a trust sharing objectives similar to those of the legal person being liquidated; if that is not possible, it devolves to the State or, if of little value, is shared equally among the members. - Can the money be given to St. Mary’s hospital which fulfills the same purpose? - Valois v. Boucherville o A.869 CCLC: have to give a generous interpretation o Have to meet the intention of the testator - in this case, the testator’s wishes are clear, he wanted to improve the health services in cardiology and surgery through research and equipment in the area - social utility trust 1270. A social trust is a trust constituted for a purpose of general interest, such as a cultural, educational, philanthropic, religious or scientific purpose. It does not have the making of profit or the operation of an enterprise as its main object. 1261. The trust patrimony, consisting of the property transferred in trust, constitutes a patrimony by appropriation, autonomous and distinct from that of the settlor, trustee or beneficiary and in which none of them has any real right. - Can the court under the express wishes of the testator change the trust when the present one is not going to meet its objective? 1298. The property of a social trust that terminates by the impossibility of its fulfillment devolves to a trust, to a legal person or to any other group of persons devoted to a purpose as nearly like that of the trust as possible, designated by the court on the recommendation of the trustee. The court also obtains the advice of any person or body designated by law to supervise the trust. - Court orders St. Mary’s as substitute for the Queen E - a.71 of the transitional rule: effect and extinction of trusts are governed by the new legislation even for trusts that were created under the old legislation which allowed the court to apply the cy-pres doctrine and the court found another organization. - Cy-pres doctrine did not exist prior to 1994 - a.869 still has a very useful purpose - Have to have a purpose expressed Topic 13 - Rules of Legal Devolution - Rules are suppletive law 653. Unless otherwise provided by testamentary dispositions, a succession devolves to the surviving married or civil union spouse and relatives of the deceased, in the order and according to the rules laid down in this Title. Where there is no heir, it falls to the State. 85 Spouse and kids a.666: Spouse takes 1/3 and descendants 1/3 (children, grandchildren, greatgrandchildren) No spouse 1st a.667: descendants get everything a. 668. If the descendants who inherit are all in the same degree and called in their own order right, they share in equal portions and by heads. If there is representation, they share by roots. 669. Unless there is representation, the descendant in the closest degree takes the share of the descendants, to the exclusion of all the others. Spouse and no a.672: 2/3 spouse and 1/3 to the privileged ascendants (father and mother of the descendants 2nd deceased) order Spouse, no 673. 2/3 of the succession devolves to the surviving spouse and 1/3 to the privileged descendants and no collaterals (brothers and sisters of the deceased and nieces and nephews of the deceased privileged are collaterals) ascendants Spouse and no PA 671: spouse gets 100% and no PC No kids, no spouse 674. the succession is partitioned equally between the privileged ascendants and the privileged collaterals No kids, no spouse, 674(2) the privileged collaterals inherit the entire succession, and vice versa (if no PC no PA but PA) 675. Where the privileged ascendants inherit, they share equally; where only one of the privileged ascendants inherits, he takes the share that would have devolved to the other. 676. Where the privileged collaterals who inherit are fully related by blood to the deceased, they share equally or by roots, as the case may be. No spouse, no PA, 677: ordinary ascendants and collaterals are called to the succession no PC3rd order 678. If the ordinary collaterals include descendants of the privileged collaterals, these descendants take 1/2 of the succession and the other half devolves to the ascendants and the other collaterals. Where there are no descendants of privileged collaterals, the entire succession devolves to the ascendants and the other collaterals, and vice versa. - divided into 3 orders based on the principle of proximity of the relationship to the deceased vis a vis order and degree of generations - De facto spouses are excluded (spouses only admitted as heirs in 1917) - daughter-in-law will never succeed on an intestate nor will step-children - General principles: Must exhaust the first generation before you go to the next Direct Line (vertical) **primacy given 1st degree - Privilege ascendants: parents of the deceased - First degree descendants: children of deceased - rule of proximity child gets before grand-child 2nd degree - Grandchildren of deceased 3rd degree - great-grandchildren of deceased 86 Collateral Line (horizontal) - Privileged Collaterals: brothers and sisters of the deceased and there children in the first degree - Ordinary Collaterals: 3rd order (ascendants and descendants of privileged collaterals) Fente: half-blood relatives: share either the same mother or the same father 676. Where the privileged collaterals who inherit are fully related by blood to the deceased, they share equally or by roots, as the case may be. Where this is not the case, the share which devolves to them is divided equally between the paternal line and the maternal line of the deceased; persons fully related by blood partake in both lines and those half related by blood partake each in his own line. If the privileged collaterals are in one line only, they inherit the entire succession to the exclusion of all other ascendants and ordinary collaterals in the other line. - have to sort out who relatives are and put them either in the maternal or paternal line - ex. Jane dies with 7 siblings who have different parents o Maternal line (same mother - Louise+): Alex, David, Jon o Paternal line (same father - Sam+): Jon, Peter, Paul and Mary Half goes to maternal and half to paternal and then divided equally among each Jon gets the most since he gets under both maternal and paternal line Representation 660. Representation is a favour granted by law by which a relative is called to a succession which his ascendant, who is a closer relative of the deceased, would have taken but is unable to take himself, having died previously or at the same time or being unworthy. - Representation occurs where predecease, simultaneous death and unworthiness o Ex. Deceased has two kids A and B o A has two kids A1 and A2 o A predeceases her kids Solution: B receives ½ and A1 and A2 each receive ½ together (so ¼ each) (a.668: representation and division by roots) If A had lived, A and B would have come in their own right (division par tete - de son proper chef) - No rep where someone has renounces - No limit in direct line ascending - No rep in direct line ascending - a.663: can have representation btw privileged collaterals in favour of descendants in the first degree (nieces and nephews) but cannot have representation btw privilege collaterals and ordinary collaterals (see example p.70 summary) - a.663: can have representation btw ordinary collaterals (see example p.71 summary) - cannot have representation outside of an order - can have representation within privileged collaterals - 1st degree descendants - a.664: no person who has renounced can be represented. - a.662: no representation in direct line ascending 87 664. No person who has renounced a succession may be represented, but a person whose succession has been renounced may be represented - second para means ex: DC+ (deceased grandfather) A B+ (child) C (GC: renounces to B BUT can still represent father in his grandfather’s estate. He has only lost his right t Bs succession but has not renounced his right to DCs) - Duration of trusts: there was representation - can re-think this Fente only takes place with collaterals (siblings) Representation in Testamentary Succession CCLC - prior to 1994 you could not have representation in a will unless it was express - CCLC a.979-980: rules of interpretation o “family”: all the relatives in the direct line and collateral lines in the degree o “children” or “grandchildren” (w/o qualification): all the descendants - Rules are still relied upon b/c many wills were written prior to 1994 Transitional Rules of CCQ - very important 41. In testamentary successions, representation takes place only to the extent provided by the legislation in force on the day the will is made. - 1990 will and testator has two kids, and A has died, I cannot use representation to salvage this branch so B will take entire estate - 1995 will, then ½ would have gone to A1 and B provided that the conditions in 749 are fulfilled - If we had a deceased and it was intestate will, then it would not matter b/c representation was always allowed in intestate succession CCQ 749. Where, in testamentary successions, the legacy is made to all the descendants or collaterals of the testator who would have been called to his succession had he died intestate, representation takes place in the same manner and in favour of the same persons as in intestate successions, unless it is excluded by the testator, expressly or by the effect of the dispositions of the will. There is no representation in the matter of legacies by particular title, however, unless the testator has so provided. - Conditions to allow 749 to operate: o Legacy must be made to all the descendant or collaterals who would have been called to the succession had he died intestate o Legacy must benefit all the members of this group o Legacy must be a legacy by universal or general title (“all my moveables”) o Representation has not been excluded by the testator Substitutions - no representation unless testator provides 88 1252. Lapse of a testamentary substitution with regard to an institute does not give rise to representation and benefits his co-institutes or, in the absence of co-institutes, the substitute. Lapse of a testamentary substitution with regard to a substitute benefits his co-substitutes, if any; otherwise, it benefits the institute. - Share goes to co-institutes or co-substitutes - No specific provision comparable with respect to trust (1286) - Case - see summary (p.75) FORMALISM AND FORMALITIES General Rule: - Juridical acts identifiable as liberalities are subject to specific forms o A writing in the case of a will (a.712) o a notarial act in the case of gifts (a.1824) and also publication or registration Exception: - wills: none; no oral will but a.714 712. The only forms of will that may be made are the notarial will, the holograph will and the will made in the presence of witnesses. - gifts: o don manuel a.1824(2)CCQ o Indirect or disguised gifts which are (a.1811) Topic 14: Forms of Ostensible Gifts 1. Notarial Gift (a.1824) - 2 issues: o Validity of the parties o Opposability of the gift to 3rd persons Notarial Gift Animus donandi Notarial Publication required No delivery Immovables or Movables Don Manuel Animus Donandi Private writing or oral No publication - immediate possession Must have delivery Movable 1812. The promise of a gift does not constitute a gift but only confers on the beneficiary of the promise the right to claim damages from the promisor, on his failure to fulfill his promise, equivalent to the benefits which the beneficiary has granted and the expenses he has incurred in consideration of the promise. - Principle of detrimental reliance: hard to invoke b/c you need to prove damage - CCLC 755 specific reference of the acceptance of the donee being a requirement which makes it irrevocable - not specifically in CCQ h/w it is implicit b/c a gift is a K and t/f you need meeting of minds and consent - Gift can also be attacked by creditor by using 1631 - Polian action 89 1631. A creditor who suffers prejudice through a juridical act made by his debtor in fraud of his rights, in particular an act by which he renders or seeks to render himself insolvent, or by which, being insolvent, he grants preference to another creditor may obtain a declaration that the act may not be set up against him. - Even if the gift is used to create a trust (a.1292) is a specific remedy for fraudulent act of creditors 2. Don manuel (1824(2)) - object: moveable property susceptible of delivery by the donor and immediate possession by the donee - Amira v. Benette case: only M possible capable of passing by delivery could be object of don manuel - Bouchet v. St. Germain: action on a promissory notes - when you proceed by promissory note insufficient consideration - no value received - Check cannot be the object of a don manuel - Malartre case: if the don manuel has a requirement for further perfection of the gift, that property cannot be the object of a don manuel - ordinary check can be revoked - Bills of Exchange Act - mandate is withdrawn on death so a check cannot be an object of a don manuel - Company shares - can you make a gift of private writing of company shares - if done on the stock exchange possible - b/c the donee becomes owner share certificates - Shares of private company in order to be transferred to someone else requires resolution of the directors to permit the transfers - Sparling: you needed a further endorsement by the company the shares could not be transferred - Meighen: require the 2 aspects for a gift: intentional and material - material was missing - delivery did not accompany the intent. Also some evidence of intention, the material aspect was missing. - Whenever dealing with property of some value, it is worth doing a notarial deed b/c it gives the added level of security and assurance Topic 15 - Indirect and Disguised Gifts - A document may be formulated in the language of sale by in fact it amounts to a gift 1451. Simulation exists where the parties agree to express their true intent, not in an apparent contract, but in a secret contract, also called a counter letter. Between the parties, a counter letter prevails over an apparent contract. 1452. Third persons in good faith may, according to their interest, avail themselves of the apparent contract or the counter letter; however, where conflicts of interest arise between them, preference is given to the person who avails himself of the apparent contract. - Viewed not as against public order but it is substitute formalism - Tacit or implied, defined by the negative - Insurance benefits, stipulations for third parties, loan w/o interest, release of a debt or forgiveness of debt - Charlevoix case: he sold to a son in law land and farm equipment for 15,000. Another child died and her kids claimed that the son in law should return a portion to the estate. Children succeeded that even though it was shown that the son in law was the only one who participated in the farm had to apply objective evaluation Sale was for far lees and was considered a gift and t/f subject to return - disguised gift. Because the rules have been reversed - rules of return no longer apply unless expressly o Stands for the proposition that a liberality must be returned under CCLC rules of return - had to return any liberalities her had received in order to have equalization in the succession. 90 - - Rules of return reversed - now not obligatory unless expressly provided for o You see a return where parents given an interest free loan to the child and they ask that these loans be taken into account in the final partition Disguised and ostensible gifts interest today is for purposes of claw backs and post-mortum alimentary obligations b/c they are qualified as liberalities. Whether a trust constitutes an ostensible gift, a disguised gift or an indirect gift? - NO, although the trust may be created through the modality of a gift, the trust itself is not a gift. o In a gift, there is an enrichment and an impoverishment o In trust the settlor is providing a benefit although there is a transfer of the property but the trustee is not enriched b/c the benefit is for the beneficiary o Settlor does not become the debtor o Trustee and the beneficiary form the creditor/debtor relationship o Not a disguised gift, because not simulation, trust is what it purport to be o Not an indirect gift, because you have a stipulation for the beneficiary o In trust beneficiary is deemed to have accepted and there is en element of irrevocability o administrator trustee Insurance beneficiary designations - Person takes out insurance and can name a beneficiary - beneficiary is revocable and may be changed or altered at any time. To be irrevocable must be expressly stated. - Designation of a spouse is automatically irrevocable unless stipulated to be revocable - can only be changed with consent of beneficiary (spouse) - When designating, important to designate by name not relationship - Can raise interpretative problems if you just say “spouse” - Should say proportions of each if you say “children” - Is it better to leave insurance to a designated beneficiary or is it better to name estate - “my legal heirs”? o It depends If left to a designated beneficiary does not form part of the estate so those funds are not available to satisfy the claims of the deceased creditors. When given to a class of persons, it is unseizable in their hand vis-à-vis own creditors. If to my estate, then it falls into the estate and is there to satisfy the creditors. - Code allows insurance to be altered in a will but you have to be careful to go that route - Piccini-Roy discourages this - jurisprudence says in order to change the designation, the policy must be properly identified so you cannot say “I leave all the proceeds of my insurance policy to X” not sufficient (policy is not properly identified here) Francois Terre & Yves Lequette, Droit Civil - why formalities? - Protect the donor from acts which border on depriving from a property without consideration - Shows that the will was free - Want to ensure the protection of the family patrimony - Requirement of the notarial act allows the donor to see the impact on the family - Notorial act ensures irrevocability so you are protecting both the donor and the donee - Discussion of the reasoning or rational for imposing formalistic requirements on gifts: 91 o For the protection of the donor b/c he is divesting his patrimony of property w/o consideration traditionally strong mistrust for gifts - allows the donor to reflect on his gratuitous act and also allow protection for vitiated consent o Protection of the family patrimony: to enable this property to remain in families Ensured respect for the rules of return at least under the CCLC (whatever you received by way of gift, would return to the succession) Reduction of liberalities in the face of claims for alimentary support o Provided respect for the rule of irrevocability of gifts, protects both the donor and donee o Succession Meighen and Reford and Royal Trust Company of Canada - Issue was whether a gift inter vivos was made by the testatrix to her grand-daughter of a painting - The painting was given to her granddaughter in a letter but continued to hang in the testatrix’s house - Gift inter vivos must be given in notarial form to be valid or for a don manuel you need delivery - The consent given by the testatrix not having been accompanied by delivery as required by law - No notarial deed - No evidence of the acceptance of the gift by the granddaughter - No evidence of any registration in this case - No public possession by the donee - No valid gift inter vivos of the painting - Painting is part of the estate which the testatrix did bequeath to her universal legatees - The testatrix has given the executor the power to alienate w/o intervention of the legatees Boucher v. St. Germain, 1933 - the plaintiff is asking for $500 in light of a ticket that the defendant supposedly gave to him wish promises a gift of $500 - the defendant said he was coerced into giving the gift and there is no value or consideration for it - the court held that the defendant did not receive value for the ticket - for it to be a don manuel need more formalities - more than just a promise Mallarte v. Decary, 1932 - before Deary died she wrote out a check for $100 and another blank check that she put away and on which she wrote instructions that upon her death, you can take what is yours - this is not a don manuel - the donation only becomes assured when the donor dies - the cannot be made in a way that it can allows the donor to directly or indirectly revoke the gift - divestment has to be done in such a way that the donation has to be irrevocable - for don manuel need actual divestment (a.8984 CCLC) - also the donee must accept - for don manuel you can have a notarial act or delivery - the essential aspect is irrevocability which we do not have in this situation - no real formalities here - the envelope containing the check did not belong to the plaintiff - the deceased before dying could always have changed her mind about the gift - the plaintiff could never have gone to the bank to cash it - the deceased could have always gone to the bank and taken out all her money 92 - the plaintiff is arguing that the check is justified because of services rendered to the deceased - court needs greater proof of a contract btw them founds that the check is a gifts in mortus causa and renders it null and invalid for lack of formalities Frederik Sparling v. Canada Permanent Trust Company, 1986, CS - it is settled law that the capital stock of an incorporated company may not be transferred by gratuitous title unless the transfer is made by way of a notarial deed - exception to this rule is the case of shares traded on the stock market where the share certificates are duly endorsed for transfer are physically delivered by the donor to the donee - not the case here - court concludes that the transfer did not form a part of the contract of transaction and cannot be made effective - writings indicate a transfer of shares to the plaintiff by gratuitous title - not in notarial form and was not accompanied by delivery of moveable property which was the object of the donation - in accordance with a.776 this transfer was an is a nullity Charlebois v. Charlebois, 1974, CA - deceased sold his farm for a price far less than what is was worth - was this a disguised gift or a valid sale - the heirs think the sale was made w/o consideration - the defendant is arguing that he provided special services on the farm and that the deceased has an interest in selling it to him for a low price - courts finds that part of the sale was a gift which required notarial form Topic 16 - Forms of Wills Definition and Characteristics (a.704) 704. A will is a unilateral and revocable juridical act drawn up in one of the forms provided for by law, by which the testator disposes by liberality of all or part of his property, to take effect only after his death. In no case may a will be made jointly by two or more persons. - Unilateral aspect: person and indivudial - high degree of confidentiality - in order to respect testators wishes certain amount of secrecy that surrounds the execution. Explains the solemnity of the act of will making - Revocable: no abdication of the right to make the will or modify its provisions (a.706) only modification is in gifts mortus causa in marriage K (1841) may be revocable - Disposal by gratuitous title: does not dispose of onerous conditions - acceptable to attach conditions - Acts containing no disposition of property still can be considered a will a.705 - Takes effect on death 705. The act is a will even if it contains only provisions regarding the liquidation of the succession, the revocation of previous testamentary dispositions or the exclusion of an heir. - No special phrases or sacrosanct formula that must be used in a will 93 Potential Challenges - Challenged on 3 grounds: o lack of capacity o undue influence o lack of formalistic validity (related to execution) o lack of knowledge and approved of the contents of the will Vulnerable Situations - elderly - sick or under medication - unusual disposition of property - drastic departure from previous will Defenses - due execution - Notes should be kept of discussion with the testator - Issue surrounding mental capacity then some kind of letter from a physician is helpful - Sometimes a statement can be inserted or there can be a side letter from the testator explaining why he is giving the property in a certain way - The implications of matrimonial claims must be explained to the testator Notarial Will a.716-725 - Preferred form in QC - more and stricter formalities - sometimes called authentic wills Conditions Respecting Notaries - Must be drawn up by notaries - public officers are competent (a.2813, 2814, 2819, 2820 - authentic acts) - To ensure his strict duty of impartiality CCQ imposes restrictions as to the relationship btw notary and testator 32 Notarial Act - 723: notary cannot be the spouse of the testator and cannot be related to him in direct or collateral line - 724: notary can be liquidator in the will but has to discharge his office gratuitously Conditions for Witnesses - 1 witness is required (a.716) - Cannot use someone who is employed by the notary, you cannot be a witness (a.725) - Full age (725) - Cannot be an employee of the attesting notary (725) - Cannot have an interest in the will (a.2819) - Identify by profession and address - Witness to a will may not be a beneficiary (760) - but does not invalidate the will but it causes the legacy to be revoked - (husbands and wives can be witnesses for one another) Formalities: 716 and following - 716: Notarial must be en minute - 716(2) date and place noted on will 94 - - 717. A notarial will is read by the notary to the testator alone or, if the testator chooses, in the presence of a witness. 717(1) Once the reading is done, the testator shall declare in the presence of the witness that the act read Signing must be simultaneous with the witness No initials in the other pages 718. The formalities presumed to have been observed even when this is not expressly stated Certain notarial wills that require a higher degree of formality to ensure that testators last wishes are reflected and respected: o Cannot sign 719: contains a declaration by him to that effect; testator must declare inability to two witnesses o Blind 720: read by the notary to the testator in the presence of two witnesses In will, notary declares that he has read the will in the presence of the witnesses, and this declaration also is read. o Deaf 721: is read by the testator himself in the presence of the notary alone or, if he chooses, of the notary and a witness. If the testator is only deaf, he reads the will aloud. In the will, the testator declares that he has read it in the presence of the notary and, where such is the case, the witness. o Deaf-mute 721: the declaration is read to him by the notary in the presence of the witness Must declare in writing not by signing 2831 & 223CCP: contestation is by way of improbation Holograph Will Formal Requirements (726): - - written entirely by the testator Signed by him without the use of any mechanical process o Printed forms where writing conveys testamentary intention allowed if words standing alone made sense Signature o Handwritten signature o Illegible signature, first initials and surname, or other distinctive mark acceptable o Not acceptable “papa”; just initials o Not necessarily at end o Must be part of the will o Must be connected to the expressed intention in the will o No requirement for date or place (Beaulne) Witness will (727-730) 95 Writing a will - 727: hand-written, typed, printed form, etc. - By testator or 3rd person - no requirement to indicate the date or place of the will Acknowledgment by the testator - 727: testator has to acknowledge the will itself and confirm his signature - before both witness, present together Signature - 727: signed at the end (what follows is considered another testamentary disposition - Possible to have 3rd person sign for the testator, his signature or that of the testator - Witnesses sign after testator’s acknowledgement in his presence - acknowledgment and confirmation of signature has to be done in the presence of both witnesses - if someone else signs, it has to be the testator name not his own - if someone cannot sign, better to use notarial will - must sign in his presence and below his signature - full signature not just initial - requirement to initial or sign each page - witnesses and testator must initial each page that is not signed prevents insertions or removal of pages - incapacities restrictions have been lifted - now spouses can act as witnesses together Witness - 727: 2 witnesses, over 18 - or prepared in advance and then displayed to 2 witnesses and then signed in front of - no requirement that the witnesses know the content of the will - they just have to know it is a will - not the same witness restrictions as under notarial will Appreciation of the Three Forms - - Degree of quality o notarial will enjoys the highest 2818 and following o makes proof of the recitals, date and place and signature - requires not further verification o of attacked, attacked on the procedure on improbation (a.223 CCP) forgery or falsification o witness and holograph will does not enjoy the same degree of quality (a.2826) - thus they must be probated or verified by the court Conservation and tracing o because NW is made en minute, it is minuted in the notary records and the original is always preserved - fire proof vault o original remains in the notaries records and when ceases practice, it is given to another notary or the superior court o centralized search system - will register compulsory for notaries o WW and HW less in the way of conservation and tracing - lawyer may retain the original - do not have the testator sign two or three original wills b/c the testator may make changes on one o HW unless remitted to a lawyer for safe keeping and then must be registered Confidentiality o NW highest degree 96 - o Prior to death, may only be remitted to testator himself and after death may only be remitted to the liquidator upon proof of death or to an heir named in the will but to no one else o Compulsory production a.867 CCP if you have an interest in seeing the will - have to prove o Before witnesses - high degree of confidentiality - not read to the witnesses o HW in a way maximum degree of confidentiality since no one will know of its existence Guarantees o Notary is recognized by a public officer o WW: as long as it follows formalities o HW has conformed to the necessary requirements - no guarantees Advantages and disadvantages - notarial will o no probate o original never lost or destroyed o cannot make changes on notarial documents since the original is will the notary unless the side note can stand-alone as a holograph will but usually will not constitute a valid testamentary document o may be necessary to get letters of verification - use outside of QC o if testator changes his mind and wants to revoke - the disinherited child could get a copy of the will - holograph will o ripe for misinterpretation and contestation - Witness Will o useful function: advantageous if you have property outside of QC - more readily recognizable form in CML o Can have a notarial will and then to have a separate will for the Florida property o Can be revoked by tearing it up and no record of it - nobody knows if they are ever in or out Codicil (737) 737: Sufficient expression by the testator of a different intention takes precedence over the rules referred to in the first paragraph and the meaning ascribed to certain terms. - Should only be used for minor changes b/c can lead to disagreements as to interpretations - May impact on another part of the will - Prof tries to convince clients not to use them - easier to make a new will - Do not have to be in the same form of the original will - must be in one of the three forms - Problem is that anything that is non notarial will have to go through the process of probate - When codicil done, clause inserted in the codicil that the testator is conforming all other portions of his will Memorandum - “I may leave a memorandum d dealing with certain movable property and I recommend…carry out as those it were a testamentary document” - Problem is people have a great list - Makes a list of personal and household effect and it will be attached to the will - Directions or instructions, not testamentary dispostions 97 Letter Missif - Cases: Dansereau & Mollinarie Dansereau v. Berget, 1951, SCC - the defendant tried to probate a as a will a letter written by the deceased that said that because he was tired he could not write a will but in the event that something happens to him that everything would go to the defendant. - The trial court said this was not a will, the court of appeal said it was a will - Appellants are arguing that it is not a will Held: The letter met all conditions of a will, it was written and signed by the testator and showed his intention to dispose of his property in favour of the respondent Reasoning: - Nothing points to the idea that he did not intend to testate in favour of the defendant - A letter can constitute a holograph will - Does not need to meet formal requirements - If the document is written by hand and signed by the testator, that it contains disposition of property and not simple recommendations, that it reveals a will/freedom to testate, - Clear intention to testate in favour of the defendant - Words clearly indicate the desire to have a universal legatee - The verb tense does not change anything Rand - Agrees that the letter did convey an intention to convey an intention an interim disposition of his property and he intended it to be his will until such time as a more formal instrument could be made - It was not merely an expression of intention to make the disposition subsequently - But does not find that the court has jurisdiction to hear the appeal Notes: - wrote a letter while he was in NY - signed and dated, hand-written - Was this letter and holograph will? - Private international law rules, Ross v. Ross, have always recognized if it conforms to the law of the domicial a.3109 3109. The form of a juridical act is governed by the law of the place where it is made. A juridical act is nevertheless valid if it is made in the form prescribed by the law applicable to the content of the act, by the law of the place where the property which is the object of the act is situated when it is made or by the law of the domicile of one of the parties when the act is made. A testamentary disposition may be made in the form prescribed by the law of the domicile or nationality of the testator either at the time of the disposition or at the time of his death. - First instance said not a will, CA said yes it was, SCC confirmed that it was a holograph will - meets all conditions: written, signed and clear disposition of intention to dispose of property at death - Language not ambiguous and does not need to be couched in sacrosanct formula - Discussed what probate was 98 Molinari v. Winfrey, 1961, SCC Facts: - named his sister as universal legatee in a valid will - deceased wrote and signed a letter to the trust company in which he said, “here are the names and addresses with amounts for my will…Please let me hear from you shortly” - letter was never mailed and was found after the deceased death in his home - appellant is arguing that based on this letter, he is a the universal legatee Held: Letter did not constitute a will Reasoning: - to be a valid holograph will a document must be written wholly in the handwriting of the testator and be signed by him - must contain actual dispositions of property rather than mere recommendations - must reveal an intention to made a will then and there and not in the future - letter contained no actual dispositions of property - no animus testandi - merely contained instructions for the preparation of a will to be made and signed at a later date - nothing to indicate a transmission of property - il faut que le mort “saisisse le vif” - constitutes a project to make a will in the future - it contains merely simple instructions to the person called to prepare the will - it was not a letter that in itself sought to dispose of property - there was still a lot to do to make the transfer happen - lacking animus testandi - the definitive act was yet to be undertaken - clearly an indication of a will to be made in the future - “give me news” so that the project becomes reality - It does not mention the amounts of the gifts, - dispositions were too vague - Signaling that you would like to make changes is not the same as making changes - Dismisses the appeal - not a valid holograph will - Not merely a draft 0 has to be a genuine will Fauteux - Need animus testandi: a reflected intention, definitive and stopped to make a disposition of property at the time of death - Burden of proof is on the person presenting the letter - Dismisses the appeal Notes: - made a notarial will in 1955 naming his sister universal legatee - in 1956, he wrote a letter to the Royal Trust indicating other legatees and residue was left to Molinarie (universal legatee) - did this letter constitute a holograph will - all courts said not a will - Taschereau said the letter was a draft that would later be turned into a will - contained only instruction animus testandi was lacking 99 Jacques v. Allain-Robitaille, 1978, SCC - Letter is type-written and t/f cannot be considered a holograph will - Letter to the insurer consider annuity payments Bissonnette v. Bissonnette, 1984 - basically, it seems that other people added text, letters and words to a holograph - the question is whether those additions render the will invalid - if the written dispositions were written concurrently by the testator and a third party, the holograph will is not valid b/c it has to be written wholly by the testator - if the dispositions added by a third party were added after the will was created then the will is valid and just those dispositions written by a third party are null - the will valid w/o that additions of a third party Notes: - issue of annotations/additions by third parties - 2 wills 1976 and 1978 - If the 1978 will t/f were some alterations in the disposative clause, and the witnesses did not sign in the presence of each other t/f invalid witness will - Could not go back to 1976 will b/c they did not have the original (could have been reconstituted today b/c we have a provision in the reconstitution of a will where the original is lost) - Could 1978 be validated as a holograph will - 3 additions by third parties: - “t” added to word “mort” and added the names Joseph and Shaunessagy to “David” and Bissonette was added to Beatrice - Court noted it was a perfect holograph will not confusion - Essence of will was not modified or altered by the additions - Testator saw and knew of the additions - Does the mere fact that there are annotations destroy holograph character? o Look at Poitier French authority - strict view - one word by 3rd party leads to nullity o If deletions in a will do not destroy the entire will why should additions o Looked at Dalring v. Templeton: someone wrote over and filled in words that were pale or incomplete - court held it was immaterial and no csq - favoring uphold o Reeves v. Cameron: legacy to a nephew, no name, universal legatee, nephew wrote in his name. Court nephew looses his legacy Criticized as being excessively rigorous - added parts could be extracted from the text Too easy for someone to annul a will merely by adding words even w/o the testator knows: If there are concurrent third party additions this should invalidate the will If they are subsequent additions, they should not invalidate the will Court leaning towards validating the will Audet v. Tremblay (1974) o Do not want to accede to a type of formalism that the court has rejected a.714 - relaxing of strict formalistic approach - means that if I have a witness will that is handwritten and I only have one witness, it can be validated as a holograph will if an heir acknowledges a defect in the will 100 : Topic 17 - Probate Article 714 714. 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. - under CCLC no disposition that was comparable so if a will was defective in form it fell - legislator wanted to avoid striking down wills for inadvertent mistakes - pendulum swung too far to the liberal side and many will were validated that should not have been When is an essential requirement not essential? - Two requirements: o Essential conditions (problematic) this has to be met first o certain and unequivocal expression of testators last wishes - Must be some defect in form Liberal Approach (1994) - Pelletier et Cote: o typed will signed in the presence of witnesses but initials were omitted upheld - Didone: o testratrix ill, beneficiary held her hand and helped her sign will, otherwise all formalities were there upheld - Morin: o man committed suicide and document was found beside him property to different persons unsigned and undated declared valid holograph will - Duguay: o at t’s request witness added name of legatee and initialed change for testatrix and himself only it was recognized in its entirety as a valid witness will since 2 witnesses and signature of testatrix - Minville: signature appeared at the beginningvalid holograph will - Bertrand v. Mattia: o the signature appears in the middle, it was witnesses and recognized as a valid will - Mercier v. Charon: o holograph was written by the universal legatee dictated by the testator - validated a.40 and a.7 of the trasntional rules applied t/f a.714 applied to validate will b/c it would be unfair not - Succession de Gomaud-Dupuis: o suffered from arthritis, document drafted by third person and only signed by the testatrix o validated as a holograph will o reversed on appeal and on appeal Paradis c. Groleau, 1999 - Succession de Rioux, 1996 o Paperless will - recognition o Diskette bearing the sticker that said it was her will o Contained an unsigned document called will 101 - - o Diskette was assimilated to an envelop containing will and bearing her signature o Severely criticized Succession de MC: o witness was a minor - almost of major age so the will was validated - liberal Monette: o pre-printed form - signed - motion to the court to probate that one sentence and his signature to create a holograph - if the hand-written sections stand-alone and make sense, then this can be probated as a holograph will o Witness signed after he signed o Court favoured the testimony of one handwriting expert o The son who did not attack the credibility of the will - testimony was favoured since he argued the will was valid which was contrary to his interest (had it been invalid he would have gotten a portion as an heir at law) o Superior court validated the will and the CA affirmed this so the wife got the estate o Point is in a pre-printed will you can pull out the handwritten parts and probate a holograph will Succession de Poulin: o partly printed and partly handwritten document in an envelop mmarked “testament” and bearing testators signature o recognized as valid holograph will Strict interpretation - Time to put limits on exercise of discretion - If the defect does not satisfy an essential condition than you do not look at the intention - Cannot just look at intention - must first satisfy that essential elements are satisfied to a certain degree - cases that are done on pre-printed will form - - - - - Francoeur, 1994: o testator was illiterate o invalid on 3 defects o no mention that the testator who was illiterate recognized document as his will and that signature was his o witness did not read out loud to the testator after drafting it in accordance with the testator’s instructions o testator did not declare that it contained his last wishes in presence of both witnesses Veilleux v. Veilleux: o Holograph document dated after notarial will by testatrix’s daughter in which testatrix promised all her property to her daughter o Invalid b/c lack unequivocal expression of last wishes Cabba v. Valceanu: o women was in the hospital and someone brought in a document on one page and told her it concerned her funeral instructions - went from a one page document to a 4 page document Poulin v. Fontaine: o Codicil on reverse side of will is not valid since it was signed by the testator and only one witness o The minimum requirement for a witness will is the signature of the testator and two witnesses Perreault v. Desrochers: 102 - - o Printed copy from computer with file entitled “testament” is not valid as a holograph will o Followed reasoning in Paradis Robitaille v. Gagnon o Court concluded that 2 witnesses is an essential requirement o Cited as an authority for invalidating a will b/c there was only one witness o Court overlooked a.760 wrong b/c there were 2 witness one witness was a legatee - should have just lost his share Gariepy v. Beachemin: o Will probated by SC reversed by CA o Gariepy wrote a note in which he leaves his house to his girlfriend o Asked a notary to prepare a notarial will and the draft was sent but he never signed it o Court looks at conditions for the exercise of courts discretion - discretion is not absolute - must conform to conditions o Analysis: Question of perspective in which this criteria of essential requirements is viewed Court favours a subjective analysis put forward by Kasirer If there is substantial compliance although defects, can be salvaged. In applying subjective analysis you look at the purpose of the requirement - what is the function of the formality like a signature or a witness and if in appreciating the entire situation and circumstances, you can conclude that that function has been substituted by something else, then you may not need the element o Purpose of witness: prevent forgery and undue influence BUT if you can show there was no forgery and no undue influence then the presence of another witness is not necessary Here the document was not signed Although signature was important element, the total absence of a signature cannot be remedied but the court left the door open if it is something less than total absence then perhaps a defect in the signature can be remedied Does this mean initials? Or if you could link it to some other signature? Signature appeared on a document sufficiently linked to the will (Mofrage-Renaud) If there is a material and intellectual link that is sufficient connected, can say there was a unified whole Para 44: mere initials not sufficient Courts interpret signature liberally: does not have to be on the document, has to be some connection Here no signature, no date, concluded that it was merely personal notes destined to the notary since a notarial will was drafted and submitted to the testator Opens the door to the idea that a defect in the signature could be validated Jacques Beaulne, Article 714 CCQ Huit Ans Plus Tard: Erreur du Legislation ou Egarement des Tribunaux? 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. 103 - gives courts discretion by which they could consider that the last will notwithstanding the fact that it did not comply entirely with the formalities required by law was nevertheless valid - instability in the courts discretion - courts seem to have encountered important difficulties in exercising a uniform and coherent manner their new discretion this creating significant discrepancies in the final results - One must ask if the decision of the QC legislator to introduce a.714 within the CCQ was justified? - Courts have become less rigid with demanding that strict formalities be met - Have to establish the parameters of the and provision and the context in which it was formed - Then will look at jurisprudence Historical Context - Not equivalent in the CCLC which stressed formalities - If it did not respect the formalities of the law it was not valid (a.855) - The rule is now limited to holograph will and wills made in front of a witness - Writing has to conform to the rule of form and they have to contain in a certain an unequivocal way the last intention of the testator (Theriault) - The will has to be null because of a defect of form before a.714 is applicable o Has to be a defect of form - Has to be a non-essential character of the formalities transgressed o Defect concerns formalities that are not certain o Must distinguish btw formalities which are required and those which are not - then you have to see if the last wishes of the testator are clear and unequivocal o the writing under examination has to show the intention of the testator o need animus testandi Difficulties with the demands - has to do with the second requirement - essential character of formalities - have to ask what formalities are essential to the validity of a will and whether that essential character of a formality varies depending in the particular circumstances of each will - two formalities to a holograph will: that it is handwritten by the testator and signed - jurisprudence seems to indicate that both are necessary 726. Le testament olographe doit être entièrement écrit par le testateur et signé par lui, autrement que par un moyen technique. Il n'est assujetti à aucune autre forme. - t/f if they are both necessary than a.714 does not apply to them - whether a witness has to sign is debated in the jurisprudence - not clear if it is an essential element or not - if the signatures at the end of the will were essential than a.714 we would not apply a.714; if they are considered not essential than a.714 would permit validation of the will - Kasirer would argue that we have to look at the function of the signatures - Can take a subjective or objective perspective Intention of the testator - The intention has to be certain an unequivocal - Should not interpret the intention of the testator - that is not the role of the court - have to give the intention life - What must be unequivocal under a.714 is that the document proposed for the probate contains the last wishes of the deceased - Some of the provision may be contradictory or ambiguous requiring interpretation 104 - But if the court is satisfied that it contains the last wishes of the deceased than it should be taken to be valid under a.714 - If it is valid under 714 that it is subject to the usual forms of interpretation Jurisprudence - Minville: o Holograph will that is signed at the beginning not at the end o Court concludes that it is valid, no requirement that the signature is at the end (a.726) t/f no need to rely on a.714 - will that is not dated o can be held to be valid o would have recourse to a.714 b/c it respects conditions of a.726 o do not necessarily need 714 since 726 does not require a date - unacceptable uses of a.714 o wills that were defective b/c they don’t meet the formal requirements cannot be saved under a.714 o nonetheless they have been validated but the author thinks this was based on principles of equity and not of law - Minor witness o Court held a will to be valid when one of the witnesses was a minor o Requirement that the witness be major (a.727) o A.714 is supposed to apply when we are dealing with matter of form not substance and the capacity of a minor is a question of substance o The judge did not have discretion to decide whether the minor was capable to witness - it was an issue of fact that he was not o A.714 should not have applied here - Holograph will outlines by a third party o Court validated the will based on a.714 but this was really an decision of equity o The testator had lived with the appellant had no kids or spouse - court did not think it would be just not to validate the will - Holograph will unsigned o Court validated it since it was written by the testator o Held that signature was not essential and that it just served to confirm the approbation of the contents - Electronic will o It was held to be valid - there was no doubt that the disks and the copy constituted the will o Have to interpret the formal requirements liberally o The disk acts like an envelop with her signature o This decision has been severely criticized o Violates the principles that it needs to be hand written o Risks associated with it are too great o There was conscience decision by the drafters of the code to exclude electronic wills since the risk is too great o In another case, the judge did not validate an electronic will since it did not meet the formal requirements (Perreault v. Desrocher) o Held that it could not be validated by a.714 since it did not meet the basic requirements 105 - 2 informalities were probably past the test of a.714: where the witness did not initial and where the will was written on a form 704. A will is a unilateral and revocable juridical act drawn up in one of the forms provided for by law, by which the testator disposes by liberality of all or part of his property, to take effect only after his death. In no case may a will be made jointly by two or more persons. - A.714 cannot save a will that is made jointly by two people 760. A legacy made to a witness, even a supernumerary, is without effect, but this does not affect the other dispositions of the will. The same is true of that part of the legacy made to the liquidator or to another administrator of property of others designated in the will which exceeds his remuneration, if he acts as a witness. - Where a witness is also profiting from the will, the court will not give it effect - A.714 cannot be applied where the will is written by a third party (Paradis v. Groleau) - Conflicting judgments on whether it is a requirement that the testator have 2 witnesses - Another decision held that initials did not constitute a valid signature 728. Where the will is written by a third person or by a mechanical process, the testator and the witnesses initial or sign each page of the act which does not bear their signature. The absence of initials or a signature on each page does not prevent a will made before a notary that is not valid as a notarial will from being valid as a will made in the presence of witnesses, if the other formalities are observed. - Judgment which did validate the will absent of initials - This sends a conflicting message - on the one hand the formality is required and on the other an exception is made a.714 - Court did properly apply a.714 in the case where the testator wrote up a holograph will on a form - she wrote her name, the date, the respondents name and signed it - The court held it was a holograph will which satisfied the essential elements of form (Lessard v. Lessard) - Have to find capacity, authenticity and expression of final wishes - Have to find a real intention to testate - only the words written by the testator are valid Fontaine v. Poulin, 1998, SC - the plaintiff, Madelaine, is asking for the verification of a writing that she alleges was a will made in front of witnesses - respondent is arguing that the formalities were not met - Madelaine lived with Wilfrid for 20 yrs and asked her to bring him to the hospital - Augustine under the dictation of Wilfrid wrote out the will with other as witnesses - Augustine said she had no control over what she wrote - he dictated - A nurse and another relative (Nicole) were also witnesses - The versions of the two other witnesses do not correspond to Augustine’s - Nicole does not remember the will being read out loud but she says Wilfred saw it before signing - Not clear when or where the nurse signed - Madelaine says she did not assist in the signatures - Wilfred was going for brain surgery and he had not prepared another will 106 772. A holograph will or a will made in the presence of witnesses is probated, on the demand of any interested person, in the manner prescribed in the Code of Civil Procedure. The known heirs and successors shall be summoned to the probate of the will unless an exemption is granted by the court. CCP 887. Applications for the probate of a will are made before the court where the testator had his domicile or, if he had no domicile in Québec, before the court of the district in which the testator died, or in that in which he left property. - Have to see if it is valid with respect to a.703 and 704 703. Every person having the required capacity may, by will, provide otherwise than as by law for the devolution upon his death of the whole or part of his property. 704. A will is a unilateral and revocable juridical act drawn up in one of the forms provided for by law, by which the testator disposes by liberality of all or part of his property, to take effect only after his death. In no case may a will be made jointly by two or more persons. - have t decide on form not on substance 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. The witnesses thereupon sign the will in the presence of the testator. - Not sure if the will disposes of property (a.703) or if it disposes of the administration of property 2166. A mandate given by a person of full age in anticipation of his incapacity to take care of himself or to administer his property is made by a notarial act en minute or in the presence of witnesses. The performance of the mandate is subordinate to the occurrence of the incapacity and to homologation by the court, at the request of the mandatary designated in the act. - Also, the witnesses did not sign in each other’s presence and the deceased did not declare out loud that this was his will 713. The formalities governing the various kinds of wills shall be observed on pain of nullity. However, if a will made in one form does not meet the requirements of that form of will, it is valid as a will made in another form if it meets the requirements for validity of that other form. Reasoning: - It is true that it does dispose of property and at the same time gives a mandate - True that witness signatures do not meet requirements - Would have been invalid pre-1994 - A.714 gives the court discretion - Refer to Beaulne: desire to respect the intention of the testator - The provision only applies to holograph wills or will made in front of a witness - The testament has to be null for reason of form - Court has to assert that the writing represents the intention of the testator 107 - Court finds that the exception applies in this case: the will was made in front of witnesses, it was null b/c of form and the court is convinced that in certain and unequivocal terms that it represents the final wishes of the testator Poulin v. Fontaine, CA, 2000 - what is at issue is the back of a written document that Fontaine claims is part of the testament - judge of first instance found that the formalities were not respected but the will was aved by a.714 - the appellants are arguing that he was constantly changing his mind - will shows that he changed his last wishes btw 3-4pm - but he does have a right to change it as many times as he would like - the judge finds that it does represent his last wishes - examines the conditions in a.714 - looks at requirements under a.727 for will made in front of witnesses - hard to know what are essential form requirements and what are not - for holograph will the judge thinks that was is essential is that it is written for the most part by the testator and then signed by him - for will made in front of witness was is essential is the testators signature and signature of the witnesses - the back does satisfy the 2 conditions since it is signed by the testator and 2 witnesses - despite the appellants arguments, proof establishes that Poulin wanted to make his will and that the 2 witnesses were aware what their signatures meant - if we required all the other formalities that the appellants are arguing there would be not point to a.714 - the front of the will poses another problem - the judge cannot ignore the fact that the front of the will does not meet the minimum requirements - it was only signed by one witness - the other witness was present but did not sign - t/f the front of the will is invalid - the legislator did not intent to dilute the conditions of form to such an extent - appeal is granted in part Paradis v. Groleau, 1999, CA - November 1993 the deceased signed a document that was written by Groleau - There is also another signature on the document over the word witness - No proof to show who and under what circumstances the signature of the “witness” was put on the document - There is no proof that shows that the witness signed at the same time as the deceased - The trial judge found that a.714 remedied the situation - this is being appeal - thinks that the judge erred in interpreting a.714 - Arguing that it does not meet the essential requirement that a holograph will be written by the testator himself - b/c it was drawn up in 1993 the conditions for its validity are regulated by the CCLC - a.714 is applicable - trial judge did err - not enough to find that the will represents the last wishes of the testator to apply 714 - these wishes have to be expressed in conformity with the essential requirements outlined in the CCQ - can’t get around certain requirements 108 713. The formalities governing the various kinds of wills shall be observed on pain of nullity. However, if a will made in one form does not meet the requirements of that form of will, it is valid as a will made in another form if it meets the requirements for validity of that other form. - CCLC a.855 echoes the same concern - CCLC a.850: holograph wills must be wholly written and signed by the testator the will has to satisfy this criteria - A.726 CCQ also demands that a holograph will be written by the testator - A.714 applies where: o The will satisfies the required conditions but not wholly o The will even with its imperfections satisfies the essential conditions o It is ascertained that the will contains the final wishes of the testator in a certain and unequivocal manner - a document written by a third party does not meet the essential requirement - the will is not a holograph will and so it is useless to examine it further to the other criteria Finding: - the will does not satisfy a.850 CCLC or 714 CCQ - not a holograph will or a will made in front of a witness Poulin v. Duchene, CA, 1999 - Marcel Poulin signs a notarial will in 1971 in which he names the respondent as universal legatee - After he died in 1996, the appellant found in the deceased house an envelop on which the deceased wrote ‘Will of Marcel Poulin” - On the inside there was a form and it said “this is my will” - The issue is whether the type-written portions of the form, suffice to create a holograph will - Does it meet the essential conditions? - Does it prove the certain and unequivocal wishes of the testator - Trial judge found that it did not meet the essential requirements under a.850 CCLC or under a.726 of the CCQ and it cannot be validated by a.714 Transitional rules 7. Juridical acts which may be annulled when the new legislation comes into force may not be annulled thenceforth for any reason which is no longer recognized under the new legislation. 40. Subject to section 7, the capacity required to make a will and the form of the will are appraised according to the legislation in force on the day the will is made. - Regardless a.726 requires that the will be handwritten by the testator - CCQ applies in this case - why? - A.714 allows the court to use its discretion to render a will valid when it is convinced that it conforms to the intention of the testator - this discretion is not absolute - First have to show that the holograph will is not null on the basis of form - Refer to three requirements for the application of a.714 (Paradis) : o Satisfies the conditions requirement but not entirely o Satisfies the essential conditions o It is established that the will contains in a certain and unequivocal manner the wishes of the deceased 109 - - - Ministers Comments: o A.714: allows the courts to recognize the validity of a will which is otherwise null for inobservance of obligatory formalities, when it is convinced, after hearing the parties, that the writing contains the final wishes of the testator o Seeks to respected the liberty and will of the testator and to make this paramount to the formal requirements Finding: The judge thinks that the written part of the document by the testator satifies the requirement of form in a.726 and that the SC should have recognized that this document and the extrinsic proof shows the will of Marcel Poulin to see his succession devolve to the designated persons The word “testament” on the envelop written by the testator determines the nature of the document He also signed the will twice at the beginning and at the end The will of Poulin to make a will is established Based on the writing, it is clear that he understood the pre-printed text and that he did not just want to make representations Under the CCLC the courts found that a testator could write on a pre-printed form as long as there is a clear intention to dispose of his property upon death Also extrinsic proof which support the intention - the testator had named him beneficiary of pension and they exchanged cards and they were emergency contact number on his dwelling lease Overturns the SC decision Gariepy v. Beauchemin, 2006, CA - the appellants are arguing that a manuscript written by the testator but not signed is not a valid will - the respondent is arguing that it is valid (since it names her as heir to a house) - no date and no signature - trial judge found that it was clear that he had the clear and unequivocal intention to bequeath the property to the respondent and applied a.714 to validate the will - trial judge thinks that a.714 would have no use one had to conform to the requirements in a.726 to rely on it- argues that a rigorous application of a.713 and a.726 would take away the discretion given to the judge by a.714 - according to Briere (author) 3 conditions must be met for the application of a.714: o the will has to have a defect in form which renders it null o the condition of form not present, must not be an essential requirement o has to express the clear and unequivocal intention of the testator - a.714 cannot be relied on to valid a will where there is a defect in substance like incapacity of the testator - also it has to clearly be a will to apply a.714 - first condition is satisfied in this case since there is a defect in form (not signed a.726) - authors criticize courts for giving too much wait to intention to the detriment of form - discretion of the courts is not absolute - a will is solemn and formalistic and the last wishes of the testator have to be protected from external influences - analysis of the essential character of the will can be done in 2 ways: o objectively (in abstracto) have to ask whether the condition imposed by the legislator is essential or not o subjectively (in concreto) 110 Kasirer: have to ask not is the condition is essential but more if taking into account the circumstances, whether or not the condition is essential to insure that the objectives of this conditions are met 2827. A signature is the affixing by a person, to a writing, of his name or the distinctive mark which he regularly uses to signify his intention. - Signature serves to show the show the consent of an act, which is necessary in the context of a will - Signature can distinguish btw a will that is in process with one that is final - It is pertinent to analyze the intention of the testator - serves to mark the personal approbation and the definitive contents of the will - Serves a preventative purpose link with consent - ritual - Assures the identity and marks the definitive character of the will - Cannot remedy a holograph will that does not have a signature on it - This does not mean a.714 does not apply in every case o It was applied in Moufrage Renaud to validate an unsigned will where the testator signature was found on another document related to the will o Has to be a material and intellectual link o Another case where a will was validated even though the testator signed only first name o t/f a.714 does apply where there are problems with signatures - Finding: no signature, nor does his name appear on the document, no date, this constituted notes that he was sending to a notary which he did, does not constitute a will. Appeal granted. Probate: Form (a.772 and following) - - - a.803: liquidator does have the obligation to probate if the document looks like a will referring to example on p.86 of the summary o Does the April 9, 1999 document constitute a valid will or codical and can it be submitted for probate? If it looks a like will, liquidator does have an obligation to submit it to probate a.803 o What about the April 9th will no it is not a valid will - it was partially written by daughter salutation and date neither is crucial for a holograph will but the instruction please also follow the attach letter was an indication that there was a supplementary step that coupled with previous letter that both letters constituted instructions to the notary lack of testamentary will - animus testandi and so court struck down document. Poulin v. Fontaine: o first document constituted a valid will but notice that court did not ask questions in correct order o first question: “is it a will” before looking at exercise of discretion under 714. o What should have prompted the debate is that the first document says “that in the case of death or incapacity” this should have discussed under a.704 - was it really a will? Kasirer on Nicolas Proulx case o will on disc - is there a fourth type of will? A judicial will? o Judges should make no one’s will on their own (Kasirer) judges were turning anything and everything into a will 111 772. A holograph will or a will made in the presence of witnesses is probated, on the demand of any interested person, in the manner prescribed in the Code of Civil Procedure. The known heirs and successors shall be summoned to the probate of the will unless an exemption is granted by the court. - Cause a lot of problem b/c not clear who had to be summoned - Gomery: you have to summon the universal legatees and the legatees by general title mentioned in the will (not the particular legatees) - those who will be called “heirs” (particular legatee is not an heir) - requirement is one of summoning not serving: simply have to notify the known heirs and legatees _ Lamotte case (1995) - holograph and witness will are private writing and fall under a.2826 and the procedure for probate compensates for lack of evidentiary weight - pre-CCQ ex parte procedure with one party - not contested procedure - initiated on motion and on certain types of affidavits - heirs and successors were not summoned to the probate Effect of Probate - Courts jurisdiction to verify whether the document is valid as to form (no question of capacity or undue influence) - probated will was provisional proof of its character and was admitted to make prima facie proof of validity onus to show it is not a will would shift - Dansereau: Tascehreau: o It authorizes delivery of certified copies 2nd effect and the will is prima facie valid - judgment in probate does not amount to chose juge - res judicata - If you agreed to the probate by not filing an objection, you are foreclosed from attacking the will Poulin v. Deschamps, 1996 772. A holograph will or a will made in the presence of witnesses is probated, on the demand of any interested person, in the manner prescribed in the Code of Civil Procedure. The known heirs and successors shall be summoned to the probate of the will unless an exemption is granted by the court. - who does this article refer to in the 2nd paragraph? 619. A successor to whom an intestate succession devolves or who receives a universal legacy or a legacy by general title by will is an heir from the opening of the succession, provided he accepts it. - Deceased signed a dactylographic will in front of two witnesses and it had the date on it - Left all his property to his wife and made his son testamentary executor - Beaulne: the people referred to in the second paragraph are the universal legatees who have accepted their rights which come from the disposition as well as the others who have not yet manifested there option - Does not include particular legatees - Does not makes sense to include heirs at law since they were not named in the will - Also a contrary position which states that even heirs at law are included Analysis - Agrees with the conclusion of Beaulne - Basically, the judge thinks that it makes sense to interpret a.772 in a broad way to include heirs at law - h/w judges are not in a position to choose which applicable of the law they prefer 112 - - even though the minister’s commentaries are misleading to the extent that they use the words “all” and “interested third parties” a.772 refers to just the people named in the will and those who have not accepted there share yet - all people in the will must be called to the probate so they are aware of it when a will is probated it is prima facie valid but it can still be contested later on Procedure to Probate - motion for probate: supported by affidavit by the applicant - holograph: need an affidavit from someone who is not named in the will - witness will: when we have them executed have witness sign an affidavit which gets attached to the will (not a requirement on the will) - procedure is instituted in the judicial district based on 3 factors: o a.887 CCP: domicile of deceased, or he died in this district or left property in that district - 863.4 CCP other procedures - 887.1 CCP can have probate before a notary but only if there is no contestation (but it takes longer, court is cheaper and more efficient) - for probate must be translated French or English - a.615: letters of verification for the court, usually done in the case of notarial wills or intestate successions - a.774 - a.775: procedure that is used when a will is lost or one simply has a photocopy - to reconstituted a will you must not only have to prove the origin and regularity of the will - high degree of proof , clear, conclusive and unequivocal - a.767: when the will cannot be produced at all, no paper, will may still be reconstituted by action - must prove that the will was not revoked expressly or tacitly must establish that the original or lack of it was not through a deliberate act of the testator Dugas v. Amiot, 1929, SCC - action in contestation of a holograph will which has been probated - burden of proof lies on the beneficiary to establish the genuineness of the writing or of the signature of the testator - the probate not having the effect of shifting to the party repudiating the will the burden of proving that the writing or the signature was forge - purpose of probating is to give publicity to the will and to allow interest parties to get certified copies of the will - then the will takes effect until it is set aside upon contestation - adopted daughter is trying to argue that the holograph will is valid - the court is not buying her story - the deceased was very organized and meticulous and she would have called in a notary - the codicil that the daughter is presenting does not refer to the will - why would she not get the other sister to sign as a witness? - All these things are important consideration - She waited to have to have the codicil recognized only after the two other sisters had died - the two people who would have been the witnesses to contradict it - Probate has the purpose of giving publicity to a holograph will, also to give to the interested parties a copy of the will - Give effect to it until it is contested 113 - Even after being probated, the holograph will is still an act sous sign prive - burden does not shift once a will is probated - still the beneficiaries who have the burden of proving its validity - The appellant has to prove the codicil that she was invoking with she did not succeed in doing Class notes: - Amio adopted a girl, Dugas and Amio wrote a codicil and gave it to adopted daughter and was signed “mother” - She died and left a notarial will and a codicil - The codicil was only probated after the servant and sister - Contested by the legatees of the notarial will - court decided in favour of Jordana b/c the legatees under the notarial will did not prove it was invalid - Reversed - who had the burden of proof - propounder of the codicil has the burden fo proof. - Always on the propounder of the will - burden of proof - Who ever is putting a will forward as being valid - has burden of proof RE McCabe: Kelly - 2 wills made in the same year, first was a witness will and the second a notarial will - the deceased wrote a letter to the notary saying the second will was in valid - “you made it out without my consent - implies a will - This was an indication to revive a will that was previously made - Essentially she reinstated her previous will of May 28, 1959 - Judge should not have decided that she died intestate - Will submitted for probate was in proper for and judges should have granted petition for probate - Holograph wills must be presented for probate by the court - probate gives effect to the will until it is contested Notes: - letter revoked the notarial will and the notarial had revoked the English form will and t/f intestacy - court of appeal, reversed this, letter revoked notarial will and at the same time retracted the revocation of the English will causing the English will to revive - strange in light of 770 - 770. Revocation of a previous express or tacit revocation does not revive the original disposition, unless the testator manifested a contrary intention or unless such intention is apparent from the circumstances. - Court must have seen in that letter, this contrary intention to have the English will revived - On motion to probate the judge discussed issues of revocation - this was only a probate - Jurisdiction of the court is limited on a probate Dans L’Affair de: Dame Aline Brien, 1997, CS - Cancer society is contesting probating a will on the grounds that it does not specify the object that is being bequeathed - It only specifies that it is a will and names the people interested - The court finds that it is a prima facie a holograph will since it meets the form requirements - Probate is the preliminary step in judging the validity of a will which goes to form and not substance - Once a will has been probated, it is still open to contestation based on substance Notes: - Testatrix left 3 wills: notarial will, holograph will, holograph 114 - Issue was that one of the charities had contested the probate - since no object could not constitute a will decision was it could be probated as a holograph will - the judge could not made a judgement on the validity of the will could only look at the form. Dans L’Affaire de la Succession de: Almond - purpose of a.772 is to allow legal heirs to be informed that a will made been made in there favour - Marilyn Piccini Roy: o The effect of a probate judgment is to establish that the will or codicil or the two were signed in a valid form and the certified copies conform to the will or the codicil can be distributed by the court to the interested parties o Does not confirm the nomination of the liquidator - Purpose is to allow legal heirs to be informed that a will exists so they may the option of accepting it - Article does not apply to heirs at law (who would have been heirs had there been no will) - 772 refers to those to whom the testator bequeathed property in his will in whole or in part as universal legatees - Whole debate - some think it should be interpreted broadly and some narrowly - Have to look at the intention of the legislator - Particular legatee was replaced with successors - Does not refer to intestate heirs - Raise costs of probate if intestate heirs were called - Purpose is to give the will the same effect that it would have if it were an authentic act (notarial) - 772 refers to two categories of people: successors are heirs to be whether intestate or by particular title - 772 applies only to testamentary wills and not intestate wills - Refers to people who have not yet accepted the devise - Beaulne: o Applies to people named in the will either by universal title or legatee universal who accepted their rights, and also the same known legatees who have not yet manifested their option o No reason to can an intestate heir o Not a chance to contest the will - does not give a definitive value to the will o Purpose is to register it at the court and have certified copies made o A probated will is still contestable except by those who recognized it or people who did not contest it because while being a mise en cause - Have to interpret 772 restrictively Cabba v. Valceaunu, 1999, SC - Mrs. Cabba signed a will just before her death - She was in a state near death - V is her sole beneficiary under the will 1996 - She claims in the motion to probate that it is Cabba last will and testament - Another will in 1983 named her son as beneficiary which he already had probated - Son is trying to probate the will since V is not doing so but uses it nonetheless as a tool to dissuade creditors of the estate from recognizing Mr. Cabba as his mother’s beneficiary under 1983 will - Says Mr. Cabba is an “interested person” pursuant to the terms of a.772 - 2 conditions to probate: o Must meet the essential requirements of a holograph will or a will signed before a witness 115 o It must unquestionably and unequivocally contain the last wishes of Mrs. Cabba does this not go to substance - Witnesses say that V told them she was her niece which she was not - They only remember there being one paper that they signed and they were told it was for funeral prep - None was ever asked to act as a witness to a will - V story is quite different - she said she looked after Cabba to the point that she considered her a daughter - She claims Cabba did not want to leave anything to her son - V says it was not until the morning that she died that Cabba asked her to prepare a will - Nurses refused to sign the affidavits since it was against hospital policy - Mr. Cabba basically said his mother was not of sound mind - she was not capable or knowing what she was signing - Doctor attests to her medical condition and her incapacity - She could not possibly comprehend what she was signing when she died - Son said she had a habit of changing her will all the time Will - Typewritten in its entirety with exception of handwritten signature of the testator, inshaky handwriting - Designates V as universal legatee and purports to repeal all that came before - States that it was signed and read aloud in the presence of witnesses - Nurses signatures are there - Affidavits remain unsigned - No initials or signatures on other pages - A.714 - Court must first ask whether the 1996 will meets all the requirements of a will signed before witnesses - If not have to see whether the essential elements of the will have been met and the will unquestionably and unequivocally contains Mrs. Cabba’s last wishes - A.727, a.728, a.70 - A.728: neither witness signed nor initialed, formality has not been met - Have to look at a.714: whether the will violates any other requirements regarding validity - 2 conditions met: written by a notary or third person and witness signed in presence of testatrix - 2 conditions in doubt: testatrix must declare in the presence of the witness that this is her will and testatrix must acknowledge her signature in the event that she does not sign in the presence of the witnesses Who is to be believed? - V lacks credibility - she has a direct interest - biased - V evidence is hearsay (that the testatrix said she did not want to live it to her son) - A.2870: admissible as evidence if their reliability is sufficiently guaranteed by the circumstances in which they are made - No witnesses came forward to support her testimony (V’s son and the notary) - Why did the nurses remember her saying that C had lost all contact with her son - Nurses refused to sign affidavits - Why did she tell them she was her niece - Nurses are totally independent - have no interest in lying - Proof is not admissible based on a.2870 - Mrs. Cabba did not declare in the presence of two witnesses that the document she was presenting was her will 116 - Nurses never signed the will and never heard Mrs. Cabba state that the signature on the document was hers a.714 - Two requirements were met: o Will made in presence of witnesses o Written by testatrix or third party and signed by witnesses in front of testatrix - 3 conditions not met: o Testatrix must declare verbally or in writing that the document she is presenting is her will o She must sign will in presence of witness or acknowledge her signature after having signed o Pages of will are to be initialed or signed by testatrix and witnesses - Omissions are serious - Requirements are essential - Not clear that it presents final wishes - Court cannot ignore medical proof - V present no proof to the contrary - Evidence is relevant to probate - Court accepts that she did not have mental capacity - Unable to conclude that it contains unequivocally and unquestionably last wishes - Dismisses motion to probate Notes: - son presented this document and gave reasons why it should not be probated since deficient b/c of form - he presented a motion to probate in the hope that it would be dismissed - generally, motion of probate is presented and you try to dismiss the motion to probate courts are reluctant to dismiss it (Rosenberg case where they failed - court said we can’t be strict on probate so let the judge on the merits here this matter) - any interest person can present a motion for probate VI. CONTENTS OF TESTAMENTARY DISPOSITIONS - first column: universal legacies fourth column: particular legacies and balance to X universal legacies 7th ex: division and that still does not 2nd column: legacy by general title except - rest can only mean M 16 and 17: particular legacy Legacy of all my money: could be a legacy by particular title or it could be a legacy by universal title depends if lay person Legacy of IM or M legacy by general title Topic 18 - Types of Legacies - 736: testamentary dispositions and intestate can co-exist classification of legacy is 3 part and identifies: o scope of legacies o what it comprises 117 - o what title does it confer significant for debt liability o universal legatees and legatees by general titles are heirs and are liable for the debts o particular legatees are only seized of the particular property they are given and are not responsible for the debt of the deceased unless there is a deficiency 731. Legacies are of three kinds: universal, by general title and by particular title. Universal Legatee - 732: entitles one or several persons to take the entire succession. universal legacy - also referred to as residuary legatee - Can have one or more universal legatees - 735: Bequests of particular items does not destroy character - Carter: presence of UL exclude legal devolution unless lapse or nullity - Glass: if more than one, there is equal sharing Legacy by General Title - 733: entitles one or several persons to take o 1) the ownership of an aliquot share of the succession; o 2) a dismemberment of the right of ownership of the whole or of an aliquot share of the succession o 3) the ownership or a dismemberment of the right of ownership of the whole or of an aliquot share of all the immovable or movable property, private property, property in a community or acquests, or corporeal or incorporeal property. - Can have UL and LGT - Legacy by general title is the most troublesome - Percentage share of any estate or usufruct o Ex. “I give to my son all IM property and I give M to my daughters o I give ½ to my sister and then residue to husband Two ways to look at it: Both have general title o What happens if sister dies, no accretion to husband so X legacy would fall into intestacy one is general title and one universal, o if sister dies, then husband would get everything Best to identify in the drafting of the will to identity the person as universal legatee Ex. I leave ½ to my daughter and ½ to her four children, if one of the children dies, the daughter won’t benefit but because the legacy of the ½ is a joint legatee you will have accretion Particular Legatee - 734: Any legacy which is neither a universal legacy nor a legacy by general title is a legacy by particular title. Covers something specific a collection of things default o Ex. “all my M in Ontario - 755. Accretion takes place in favour of the legatees by particular title where property is bequeathed to them jointly and a lapse occurs with regard to one of them. 118 - - - - 756. A legacy by particular title is presumed to be made jointly if it is made by one and the same disposition and if the testator has not allotted the share of each colegatee in the bequeathed property or has allotted the colegatees equal aliquot shares. It is also presumed to be made jointly when the entire property is bequeathed by the same act to several persons separately. 3 elements must be present: o legacy must be made in same clause, o no indication of apportionment o apportionment must go to the sharing of the property Ex. if X dies, I leave my chalet to X ½ and to Y for ½ not joint legacies so X’s half would fall into residual o If legacies are joint and fulfill criteria there is accretion unless the will provides otherwise 748: A legacy to a creditor is not presumed to have been made as compensation for his claim (unless expressed in stipulation) 743: Extent of the legacy: effect of a legacy is that it transmits rights of property which may be accessory to the principle o if I give a legacy of $50,000 but I do not settled it out for a year, question: is that legatee entitled to interest yes, entitled to fruits and revenues o Have to say “without interest” eliminated debate, and saves effort for liquidator 744. Bequeathed property is delivered, with its dependencies, in the condition it was in when the testator died. Effect Joint Legatees accretion - A, B, C universal joint legacies and A dies so accretion favour of B and C - If dies after the testator goes to the bare owner if he got a usufructury - See examples in summary Carter v. Goldstein, 1921-22 - clause in the will says that $25000 will be held in trust with the revenues going to his wife as long as she is alive and as long as she is she remains a widow; once either of these events happen they revert back to the estate - another clause says that his kids will get the residue of the estate but if no issue it will go to the wife - testator dies with no kids and legal heirs are claiming that the $25,000 belongs to them since the will said “revert back to estate” - judge held that the wife was named universal legatee should they have no kids and t/f the $25,000 goes into her estate (since she died one year later) - she gets bare-ownership only once she dies and enjoyment during her life (as long as she remains unmarried) Notes: - Whether the $25,00 belonged to intestate heirs, goes to his estate or to Ms Carters estate? - Court held that it went to Ms Carter since not kids and she was named the universal legatee, she was residual heir Dame Glass v. Dame Glass, 1969 119 - husband died and left in last will and testament in the form derived from the laws of England he left a wife and five kids it is alleged that the will is unclear and ambiguous and requires interpretation as it does not specifically set out the extent of the powers given to the appellant by the testator - “bequeath to my wife and children my all to do with as she (my wife) may see fit” - Court separated it into these two parts - Clear that he left all property to his wife and kids - Second part is less clear - Cardinal rule is to seek the intention of the testator which is to be gathered from the words and expressions used, in their ordinary meaning, taking the will as a whole and giving effect to each and every part of it - When meaning is doubtful or obscure, the intention must be determined by interpretation rather than by the adherence to the literal meaning of the words used - Implies the complete power of use and disposal in whatever manner desired and free from interference the possession of all the attributes of ownership - Second parties controlled by the context in the first part - Second part must be construed to mean that the wife shall be free to deal with or dispose of the testator’s property and estate for the purpose of giving due effect to the first part - Wife has control over the estate - Also makes sense given the context - she had 5 minors so it makes sense to give her control - Distribution of the estate cannot be postponed beyond the date when the debts are paid, the assets liquidated and the net residue determined - Once everything is taken care of she has a duty to divide the estate in equal shares btw her and her kids Notes: - Was a bequest to the wife and kids of all property as joint universal legatees so each one would take in equal shares - wife was to be administrator Labbe v. LaFlammme, 1997, SC - Lorenzo Labbe died and named Regis Laflamme as universal legatee of his property - He left 10,000 to each of his nieces and nephews and left $1000 to their kids - Labbe is arguing that the legacy was made in contravention of a.761 CCQ since Laflamme is the son of one of the employees at the health and social services centre where Lorenzo lived - Arguing no valid consent since there was either insanity or fraud Facts: - He is staying in a centre - He decided he wants to meet with a notary and explains that he would like to testate in favour of the son of the employee - The notary explains him the issues and the notary speaks to a lawyer who says it is legal - The notary goes back to inform Lorenzo that is would not be a problem - Apparently, Regis Laflamme did some repairs for him Reasoning: 761. A legacy made to the owner, a director or an employee of a health or social services establishment who is neither the spouse nor a close relative of the testator is without effect if it was made while the testator was receiving care or services from the establishment. 120 A legacy made to a member of a foster family while the testator was residing with that family is also without effect. - Also a.276 of the Loi sur les services de sante et les services sociaux 276. Le legs fait au propriétaire, à l'administrateur ou à l'employé d'un établissement qui n'est ni le conjoint ni un proche parent du testateur, est sans effet s'il a été fait à l'époque où le testateur y était soigné ou y recevait des services. Le legs fait au membre d'une ressource de type familial à l'époque où le testateur y demeurait est également sans effet. - Purpose of these articles are to protect people under protective supervision from being taken advantage of - Also ensures that no patients are favoured more than others - If the legacy corresponds to either situation it is null - These articles do not say anything about the son of an employee - Like all exceptions in the law this one has to be interpreted restrictively - The disposition is clear - S.41 Interpretation Act: a provision which is designed to protect a group of people has to be read liberally so as to meet its objective - The goal of this article is to protect vulnerable people from the influence of others who may have a personal interest - The courts cannot add words to the law that are not there - People have a right to manage their affairs in a way so to avoid legislative restrictions - No proof here that the money was destined for Regis’ father - Testator is presumed to be of sound mind until proven otherwise - No doubt that he was of sound mind when he signed he will - “Capitation” - generally done in secret - Raymond Laflamme is a friend of Lorenzo’s - he knows of his affairs, helps him with shopping, visits him in the hospital when he goes, he does his taxes, proof does not show that he intervened with his affairs - Lorenzo wanted to favor his friend by testament but Raymond tells him it is against the law so Lorenzo decides to give it to his son - No lies, no fraud, no bad faith - Will is valid Blanchette-Miller v. Brochu, 2000, CS - 1991 testator went to live in an elderly people’s home owned by the defendant - 1996 the defendant closed the business, she moved but accepted that the testator come live with her and her husband - 1996 changed her will to give half her property the defendant and the other half to 3 plaintiffs - Invoking a.761 CCQ & a.276 Loi services sociaux Decision - The defendant stopped exploiting that type of business which the testator knew and chose to live with her anyway - Even if the testator got the same services, it was no longer categorized as a centre for social services - Did not offend the law since when the testator signed her will, it was not longer a foster home 121 Topic 19 - Legitimacy of Dispositions and Conditions What happens when legacies fail? - Can fail for 4 reasons: o Lapse: a.750-753 - whole will falls 750. legatee does not survive the testator, except where there may be representation., legatee refuses it, is unworthy to receive it or, again, where he dies before the fulfillment of the suspensive condition attached to it, 753. A legacy made to the liquidator as remuneration lapses if he does not accept the office. Also where a legacy is made to remunerate the person appointed by the testator as tutor to a minor child or designated by him to act as the administrator of the property of others. 752. Where a legacy charged with another legacy lapses from a cause depending on the legatee, the legacy imposed as a charge also lapses, unless the heir or legatee called to take what was the object of the lapsed legacy is able to execute the charge. 751. A legacy also lapses if the bequeathed property perished totally during the lifetime of the testator or before the opening of a legacy made under a suspensive condition. If the loss of the property occurs at the death of the testator, at the opening of the bequest or subsequently, the insurance indemnity is substituted for the property that perished. o Nullity: defect that exists at the moment legacy is made a.757-762 - rest of will still valid 757. A condition that is impossible or that is contrary to public order is deemed unwritten. Thus, a clause limiting the rights of a surviving spouse in the event of a remarriage or new civil union is deemed unwritten. 758. A penal clause intended to prevent an heir or a legatee by particular title from contesting the validity of the will or any part of it is deemed unwritten. An exheredation taking the form of a penal clause intended for the same purpose is also deemed unwritten. 759. A legacy made to the notary who receives a will or to the spouse of the notary or to a relative in the first degree of the notary is without effect; this does not affect the other dispositions of the will. 761. A legacy made to the owner, a director or an employee of a health or social services establishment who is neither the spouse nor a close relative of the testator is without effect if it was made while the testator was receiving care or services from the establishment. A legacy made to a member of a foster family while the testator was residing with that family is also without effect. 762. A legacy of property of another is without effect, unless it appears that the intention of the testator was to oblige the heir to obtain the bequeathed property for the legatee by particular title. o Revocation: a.763-765, 767-771 - legacy is rendered inoperative before it is put into place Eliminates the effect of will and can result from an act of a testator or from a material fact or from legal or judicial revocation ex. McCabe: first will cannot revive because of general revocation clause in 2nd will. 763. express or tacit. 764. A legacy made to the spouse before a divorce or the dissolution of a civil union is revoked unless the testator manifested, by means of testamentary dispositions, the intention of benefiting the spouse despite that possibility. Revocation of the legacy entails revocation of the designation of the spouse as liquidator of the succession. The same 122 rules apply if the marriage or civil union is declared null during the lifetime of the spouses. (Lemard case) 765. Express revocation is made by a subsequent will explicitly declaring the change of intention. A revocation that does not specifically refer to the revoked act is nonetheless express. 766. A will that revokes another will may be made in a different form from that of the revoked will. 767. The destruction, tearing or erasure (must be deliberate or under testator’s order) of a holograph will or of a will made in the presence of witnesses entails revocation if it is established that this was done deliberately by the testator or on his instructions. Similarly, the erasure of any disposition of a will entails revocation of the legacy made by that disposition. Revocation is entailed also where the testator was aware of the destruction or loss of the will and could have replaced it. 768. A subsequent testamentary disposition similarly entails tacit revocation of a previous disposition to the extent that they are inconsistent. The revocation retains its full effect even if the subsequent disposition lapses. 769. Alienation of bequeathed property, even when forced or made under a resolutive condition or by exchange, also entails revocation with regard to everything that has been alienated, unless the testator provided otherwise. Revocation subsists even if the alienated property has returned into the patrimony of the testator, unless a contrary intention is proved. If the forced alienation of the bequeathed property is annulled, it does not entail revocation. If legacy with a charge, that it is too onerous, court can revoke this provision if the entire will falls, and only one will in existence, intestacy will result if the entire will fails b/c invalid as to form or incapacity and there is a prior will, the 2nd will was null and t/f the prior will will prevail Terms or conditions? - If you characterize it as being a term, he has an acquired rights. If as a condition, “ I give the $1000 provided that…” if condition is not fulfilled then no acquired right. Wikipedia In common law jurisdictions the cy-près doctrine (pronounced as "sigh-PRAY") is a legal doctrine of Courts of equity. The term can be translated (from French to English) as "as near as possible" or "as near as may be."[1] When the original objective of the settlor or the testator became impossible, impracticable, or illegal to perform, the cy-près doctrine allows the court to amend the terms of the charitable trust as closely as possible to the original intention of the testator or settlor, to prevent the trust from failing. A typical example would be a trust established to turn public opinion against slavery. Once slavery was abolished, the trust's stated purpose had become impossible to effect. The court will then modify the particular purpose of the trust, leaving it within the same general charitable purpose. - conditions that are impossible or against public order, cannot limit a spouses right to remarry 123 - under QC charter many conditions are not acceptable a.757: fall remarriage clause is interesting Guarantee case: clause did not discriminate was related to future husbands socio-economic status - civil status v. financial status examples in summary: o right to post-mortum obligation is public order G. Champenois, Annotation of Tribunal Grand Institution Paris - legacy is to pay for prolonged sexual relations - liberalities an be annulled when they appear to have lost their liberal character and have a for the objective of remunerating someone for prolonged sexual relations - this was the case of a man who was single, no kids, and he left his money 3 younger men with whom he had sexual relations and had lived with as de facto spouses and who helped him meet other men - liberality is null if it establishes an illicit relation - decision cannot be approved since not only were these homosexual relations but they were characterized by plurality of partners - a liberality which has for a goal to maintain by remuneration immoral relations loses its liberal and free character and an by consequence be annulled Canada Trust v. Ontario Human Rights Commission, 1990, ON CA - trust was created to provide scholarships at eligible institutions - had to be white and of Christina or Protestant and persuasion to benefit - since the trust was premised on the notion of racism and religious superiority it contravenes principles of public policy under which all races and religions are equal - applies the cy-pres doctrine since there is a clear charitable intent and invokes its inherent jurisdiction to intent to bring the trust in accordance with public policy - permit general charitable intent to advance without the racist conditions - void on the grounds of public policy to the extent that it discriminated on grounds of race, colour, nationality, ethnic origin, religion and sex - if they are at ameliorating inequality then it would be ok to restrict the class - since trust is a public one, restrictions that are contrary to policy of equality will render it void - applies cy-pres doctrine with deletion of discriminatory restrictions since it had a charitable intent Re Wishart Estate, 1992, N.B.Q.B - testator asked in his will that his four horses be killed since he was afraid they would not be looked after properly - court held that this would be against public policy - well-order society cannot tolerate the waste ad destruction of resources when such acts directly affect important interests of members of the society - community would be severely injured if the will was carried out - the destruction of four healthy horses for no useful purpose should not be upheld and would be a waste of resources and estate assets even if carried out humanely - the direction in this will is invalid 124 Central Guaranty Trust Company v. Lefebvre-Gervais, 1992, CS - will had a clause that said: - “My trustees are directed to stop all or part of the pension to my wife should she elect to remarry and this the month following her wedding should: o Her new husband not be working o Her new husband be without substantial income - Intention was to encourage his wife to marry someone who could support himself and not be using his wife’s money since he wanted it ultimately to go to the kids - Court interpreted these conditions are cumulative: if she marries and he has no job and is without substantial income she is cut off - She did remarry someone w/o a regular job and w/o substantial income so the trustees should have cut her off one month after the wedding - Trustees are to continue to pay her the cost of supporting the two children as long as it is their choice to be under her care which is no longer the case - The revenues must be retained by the trustees and should accrue to the beneficiaries of the capital of the trust - Have to look at the intention for including the marriage clause to see if it is contrary to good morals or public order - In this case, the clause was meant to protect the children’s inheritance - did not want the new husband to be using the funds - His intention was not to prevent her from remarrying but to ensure that the children’s welfare was protected - Legitimate desire to protect trust property QC charter application - Nantel v. Nantel: “the enactment of the QC charter after the devolution of the estate could not take away rights from the legatees which they had enjoyed prior to its enactment” - Right to marriage is not included in freedom of association a.3: Beland-Abraham : if re-marries revenues would stop - court held that it did contravene a.50 QC charter right to remarry and t/f was illegal and contrary to public order - Arguing that s.50 has the effect of protection re-marriage and a.49 creates recourses - Court finds that s.50 is interpretative and no substantive: does not create new rights not enumerated in the Charter - Freedom of willing is expressed at a.831 CCLC and s.6 of Charter can be as interpreted as protecting freedom of willing - everyone has rights to free disposition of property - Rejects the plaintiffs claim that s.49 and s.50 of the Charter will render the clause null - S.3: freedom of association o Clause did not interfere with her freedom to marry - S.10 and 13 o Discrimination - cannot have a discriminatory clause o Based on husbands financial status o The distinction made in the clause does not effect her right to re-marry o Wife is not deprived of social aid b/c of her married status but because of the employment status of her husband - Finding: o Clause is not null or void and is not contrary to public order or good morals o Provision is cumulative 125 o Clause is justified o Revenue must accrue to the capital of the trust to the benefit of the capital beneficiaries, the kids a. 553 Code of Civil Procedure The following are exempt from seizure: (1) Consecrated vessels and things used for religious worship; (2) Family papers and portraits, medals and other decorations; (3) Property declared by a donor or testator to be exempt from seizure, which may however be seized by creditors posterior to the gift or to the opening of the legacy, with the permission of the judge and to the extent that he determines; (4) Judicially awarded support and sums given or bequeathed as support, even if not declared to be exempt from seizure by the instrument evidencing the gift or bequest; (5) Books of account, titles of debt and other papers in the possession of the debtor, saving the things mentioned in article 570; Cardone v. Iammatteo, 2002, CS - action for arrears of alimony and to declare valid and executory a seizure before judgment of the undivided on half ownership interest of the defendant in an immoveable property of which her and his brother Passquale are the heirs, the previous owner their mother named them universal legatees - in a.7 of the will she said that all the property bequeathed was unseizable for any debts whatsoever of her legatees 2649. A stipulation of unseizability is without effect, unless it is made in an act by gratuitous title and is temporary and justified by a serious and legitimate interest. Nevertheless, the property remains liable to seizure to the extent provided in the Code of Civil Procedure. It may be set up against third persons only if it is published in the appropriate register. - Stipulation in the present case fails for several reasons: o It is not stated to be temporary nor is it justified by any apparent or serious legitimate interest mere intent to benefit sons is not enough o Also fails b/c the plaintiff is a third person in relation to the stipulation and the will was not published until Oct.16, 2001 - t/f even if the stipulation was valid would not apply to arrears before that date - plaintiff is entitled to recover all arrears b/c the stipulation is invalid - but even if it had been valid could claim all arrears owed prior to date of registration - she would also have been entitled to the arrears afterwards on the order of the judge because they would have accumulated after the date of the testator Topic 20 - Interpretations of Liberalities - give a fair and literal meaning to the actual language of the will and seek meaning within the four corners of the will if ambiguity can resort to extrinsic evidence apply rules for interpretation of K read all clauses of the will together and you give meaning to expression in liberalities sometimes the code helps with interpretation example: 126 768. A subsequent testamentary disposition similarly entails tacit revocation of a previous disposition to the extent that they are inconsistent. The revocation retains its full effect even if the subsequent disposition lapses. - when it comes to interpreting with a will can rely on principles of interpretation that apply to legislation or other enacted texts and even to contracts all of which principles are easily enough transposed to wills 1427. Each clause of a contract is interpreted in light of the others so that each is given the meaning derived from the contract as a whole. - All the clauses in a will are interpreted the ones by the others, giving to each the meaning to be derived from the entire act - Once clause in the will should not be isolated from the others 737. Testamentary dispositions made in the form of an appointment of heir, a gift or a legacy, or in other terms indicating the intentions of the testator, take effect according to the rules laid down in this Book with regard to universal legacies, legacies by general title or legacies by particular title. Sufficient expression by the testator of a different intention takes precedence over the rules referred to in the first paragraph and the meaning ascribed to certain terms. - No fancy words are required - Can also abandon the literal meaning of terms in order to another expressed intention - Real testamentary intention is ascertained by giving a fair and literal meaning to the language employed and not assume what a reasonable person would have done (Auger v. Beaudry) - Idea must be completed by a.1427 and a.737 Lord Buckmaster - someone was left out of the will - determining real intention of a testator is to give fair and literal meaning to the actual language of the will - human motives are too uncertain to render it wise or safe to leave the firm guide of the words used for the uncertain direction of what it must be assumed that a reasonable man would mean Leclerc v. Lafrance, 1999, SC - what did the testator mean by “le residu de tout mon argent comptant” 2870. A statement made by a person who does not appear as a witness, concerning facts to which he could legally testify, is admissible as testimony on application and after notice is given to the adverse party, provided the court authorizes it. The court shall, however, ascertain that it is impossible for the declarant to appear as a witness, or that it is unreasonable to require him to do so, and that the reliability of the statement is sufficiently guaranteed by the circumstances in which it is made. The reliability of documents drawn up in the ordinary course of business of an enterprise, of documents entered in a register kept as required by law and of spontaneous and contemporaneous statements concerning the occurrence of facts is, in particular, presumed to be sufficiently guaranteed. - This statement refers to all the cash that is in bank accounts that can be withdrawn immediately 127 - Also have to look at the context - he clearly intended to give more to his sister with who he had a special relationship Other cases: money has been interpreted to include other types. Nixon v. Pinelli, 2000, CA 762. A legacy of property of another is without effect, unless it appears that the intention of the testator was to oblige the heir to obtain the bequeathed property for the legatee by particular title. - interpretation of c 5: “Anna Pinelli the sum of fifty thousand dollars, my entire thimble collection and half issued shares in Ville-Marie Couriers and Transport” - problem is he can’t give what is part of a corporation even though he is the only shareholder - trial judge used extrinsic evidence to interpret clause - this is problematic - interpretation of will is with regards to when he signed it - have to look at the literal and ordinary meaning of the words used unless there is serious reason to believe that such interpretation is not in line with the intention of the testator - a.726: could not bequeath what was not his - court turned to external evidence Auger v. Beaudry - 128
