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Introduction

Book 3 of the CCQ and important areas of spill-over in the code e.g. the family patrimony, matrimonial regimes,nominating a tutor for a will, property institutions and so on (see handout list) and in statutes like pension legislation andtaation legislation.

!ransitional rules are also fre"uently used in this area of the law e.g. a will drafted or a gift given under the old code or adeath occurring prior to #$$%.&rt. 3' of the transitional provisions governs when the succession opens (i.e. death) and art. % says to look at the date thewill or gift was signed.&rt. ' * '#(+) for the transitional provisions on trusts.

Common contet in which a.# arises is a person on a death ed who rights a check and hands it to someone.

Could e for payment of a natural oligation (/esant v. /esant)

Sabados-Derkach c. Sabados0c donor was gravely ill w0 cancer, presumption that gift is 1C (made 2in contemplation of death)this presumption, which comes from /esant c. /esant, is reuttale, ut was not reutted in this case4ote5 even if had, lacking necessary form to e valid gift 67 (lank che"ue e no immed. delivery...)

TOPIC1 LEGALINSTITTIONANDACTO!S

I. Successions(devolution ecause of death)

A. Intestate8stalished y law when a person dies without a will. 6t is sometimes called 2legal succession ecause it is a default or

legal regime operating with suppletive law and presumed intention.

!he inheritors are referred to as the 2heirs (hritiers)

!he actors are5 the deceased, the heirs and the interposed li"uidator (under the old law the testamentary eecutor) (arts

'' 9).

By virtue of art. :, the heirs are sei;ed or step into the shoes of the deceased.


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!he 3 actors here are5 !he donor or testator, the institute (grev) and the sustitute (appel). !he institute is the 2owner

of the property that the donor or testator has given her, ut it is a separate patrimony intended for the sustitute. !hesustitute@s right derives from the donor or the testator, not from the institute.

!he sustitution can only eist for 3 ranks * hence the donor or testator can give two 2ownerships (i.e. two sustitutes

in total * in which case the sustitute ecomes the institute for the second sustitute).

!he institute acts like a fiduciary with respect to the property (under the CCAC there was a distinction etween vulgar

sustitution and fiduciary sustitution, where the former was like a default). nder the CCQ, the institute may alienate(could not under the former law * indeed a stipulation of inalienaility was so characteristic of this institution that the

presence of one would make the rules on sustitution kick in)? however, a fund must e created for the sustitute with thefunds. !he donor or testator can refine the terms so that the institute can do more (ut then must do an inventory, take outinsurance, e prudent etc.).

!his mechanism would e used for things like keeping a farm in a family. =owever, they are very rarely encountered in

modern uran practice (now that there is the trust).

& sustitution could e found to eist even if the word usufruct was used (designating concurrent ownerships rather

than successive ones).

I$ Trusts!he 3 actors here are5 the settlor, the trustee and the eneficiary.

nder the CCAC ($#a 9) the trust was confined to creation in a gift or will in the personal rather than commercial

contet. nder the CCQ (# 9) it is epanded to purposes not >ust eneficiaries * patrimony y appropriation in which

no one has a real right. !his is now an etremely fleile device * discretionary trusts, asset protection trusts to keepassets safe from creditors, living trusts to circumvent proate proceedings (though not an issue here). !he gratuitous trust(67 and 1C) * maye a new form of lierality.

$. Gi#ts %C!his is descried as a hyrid institution ecause it is like a gift (insofar as it is a contract) and it a will (insofar as the

donee takes like a legatee on death).

&rt. # says that gifts may e 67 or 1C. Dhereas a gift 67 re"uires actual divestment (even if transfer or delivery is

su>ect to a term) as per art. #', a gift 1C

#5 conditional on death

6n principle are null B! eceptions5 #) marriage E? ) will

#%# are revocale unless otherwise stipulated (opposite of CCAC) Trans !u&e '1()*the 48D CF8 applies * often comes up with marriage Es6n marriage E5 institutional E and valid disposition? for donee5 same as legatee (epectation at most)? same recourses as

for will? until death of donor has no rights

!e+i&&ard ,. Couture (p.)Gifts made in contemplation of death are different from a gift which only uses the date of death of the donor as the point

of time at which a condition or term thereof will e fulfilled. =ence, a gift in contemplation of death must e madeecause of death and conditional upon death, not merely coincidental with it.

& will is a gift in contemplation of death ecause death itself will inevitaly cause a situation wherey the person, who

up to that moment en>oyed full ownership, will e forcily divested of all his possessions and they will stand waiting for anew possessor to come and take them.

Gift in contemplation of death cannot ecome effective until death has occurred.

Pesant ,. Pesant (p.)Fonation 1C is that whose effect is suordinated y the death of the donor, which up to that moment has no effect, and

y virtue of which the donee does not ac"uire any rights efore the death of the donor.

Lindsa-o// ,. %inistere du !e,enu du 0uebec(p.#)urisdrudence est H l@effet "ue, lors"u@il y a amiguitI, nous ne devons pas tellement nous rattacher H la lettre,

au sens propre des termes utilisIs, mais "ue nous devons de prIfIrence rechercher l@esprit du testateur ou de l@auteur aprJsavoir scrutI l@ensemle du document sous l@Itude.

!estator did not create usufruct.

I. Trans+ission and Trans#er o# Assets

TOPIC T!ANS%ISSIONPONDEAT

!osenbush ,. !osenbushKenunciation.


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!i/ht o# O2tionCCAC gave 3 options to successor5 (#) acceptance pure M simple, () acceptance y enefit of inventory, (3)

renunciation? whereas CCQ gives only options5 (#) acceptance or () renunciation, although in practice can accept w0 orw0out formalities

35 successor has mths to decide L delieration (if cred. eist, est to eercise option &


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''$5 derogation only poss. where (#) succ. L 2manifestly solvent 9 () all =s agree (they then ecome liale for dets

eyond value of prop. they take)

epress stipulation y ! prevents derogation (some argue even naming of l"dtr in will suffices)? similarly, 3 implicitly

prevents derog. for minors, protected adults3: L disputed5 authors say should e o. to pulish notice so as to notify potential cred.

Li4uidatorpresent in all succ. (test. or intest.)

=s L seised of prop. from death, owners y accpetance, ut l"dtr@s action causes de facto transmission':5 where not named, devolves of right to =s, even intestate (est to get power of attorney)

several l"dtrs can e named (e.g., parts of est. assigned to pers. of particular epertise)

su>ect to regimes5 li"uidation 9 admin. of prop. of another

often ecomes trustee (smooth passage, no legal change re"uired)

role L continuous until end of l"dtn or actually replaced y ct (e.g., for negligence)5 '$#

'%5 optional ecpet for sole =

'$5 no o. to take out insur., although often good idea of dealing w0 another >uris. where it L necessary

'$5 remuneration now possile, unless l"dtr L =

appointment5 must have legal capacity 9 if legal person, must e trust comp ('3)? if not provided for y !, heirs

ecome l"dtr or choose y ma>ority vote (':)? term. used not important (')? ct can appoint in eceptional cases (',

'$)'$'5 if several, must act in concert (cf. #33:, #33)

delegation of specific acts, not general delegation, is possile5 #33'

CCAC did not allow resignation w0out ct authori;ation, ut #3:', #3:$ CCQ make it much easier

powers5 gives simple administration, ut generally will gives full admin. (#3-') (see handout)

Pa+ent o# Debts and Particu&ar Le/aciespay only certain 9 eigile dets (2successoral 9 2deceased@s) that have not een prescried (e.g., if not due, =s payproportionately when deadline arrives, rather than l"dtr)

to raise funds to pay dets when insuff., cf. #3, #%, :,

after all dets paid, pay /As, as function of solvency of succ.5 (#) manifestly solvent (), () not manifestly solvent

(#), or (3) insolvent (##, #) (see handout)recourse against l"dtr (#:), =s if l"dtr showed due diligence (#)

end of l"dtn5 #$-5 de facto (all dets paid), de >ure (discharge of l"dtr5 #$(), -)

Partitionindivision, ut primary rule that no o. to remain in indivision5 #3

admin. L governed y #: ff.

continuance y agreement of =s (##), y ! (3'), y ct (% 9 specific e. of 3$-%#, %3-%:)

35 partition occurs when l"dtr L discharged, in accordance w0 proposal drawn up y him (3)

' ff.5 general rule on return has een reversed5 no return unless epress stipulation in will

modalities5 immov. should not e split (:), should e amicale (:3), otherwise y epert 9 drawing lots (:%)?

preferential allotments possile (::-:, :)effects L retroactive declar. of ownership5 each = deemed to e owner of his and only his share from moment of death

(%) (as opposed to partition in general which is seen as transmissive of ownership)

TOPIC3 LI%ITATIONSON5!EEDO%O56ILLING

!hese support provisions were introduced in #$ and they provide for a month window of time in which those whowas need to may make a claim on the estate of the deceased.

&rt. $#3 of the Orench Civil Code limits the freedom of a testamentary disposition for a deceased person y re"uiring thatthey set aside a reserve for spouses and dependent children (a portion of the estate depending on how many children etc.).!he idea of freedom of willing comes from 8nglish law. &rt. $#3 is a re-surfacing of the old Orench $ coutume de /ariswhich similarly imposes oligations rather than guarantees freedom.


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witnesses are all saying different things aout where they signed it. !here is a prolem with the contemplation of death inthe first document * it looks like Dilfred thought he was signing a power of attorney in case of his incapacity (2confusionin his spirit). !here are three other its of paper. !hese do not constitute a single >uridical act (art. '%). !his is a totalmess and would e null under art. '#3. =owever, art '#% allows for eercise of interpreting the testamentory intentionand the >udge has the discretion to decide if what is epressed is what Dilfred wanted. !here is a mysticism here aoutthe meeting of the minds after death.

/rior to #''% under the Coutume de /aris and in traditional Koman law at death property always goes to the nearestrelation (ased on presumed affection, keeping the property in the family etc). !he #''% Quebec Actmade freedom of

willing in testamentary matters possile. !he CCAC codified this choice of favouring the free disposal of property asopposed to the customary reservations in law for family memers.

udicial proceedings.

!his made sense under the under the CCAC, where the idea was the successor would automatically step into the shoes ofthe deceased and assume the det and liailities of the deceased (art. ' CCAC). !here was the possiility of limitingliaility through 2acceptance under enefit of inventory, ut the rule was that dets and liailities were accepted. &rt.

' also states that this immediate stepping in does not apply to the Crown who needed to e >udicially put intopossession. !he seisin of the eecutor was limited in time (# year and # day) and power (could not sell property unlessempowered to do so in the will).

6n the CCQ, the presumption of liaility limitation is reversed and in order for a successor to e saddled with the dets ofthe estate he or she must opt out of the li"uidation process. &rt. :() says that heirs are not ound y oligationsgreater than the value of the property.3 De might think of this as 2succeeding to the property rather than 2suceeding tothe person. &rt. ''' says that the li"uidator has the successors seisen from the time of the opening of the successionuntil the estate is li"uidated. &rt. $ says that if no successors can e found or all have renounced the


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a li"uidation procedure which sees to the satisfaction of creditors@ claims first?

a prohiition on penal clauses like a condition saying that the legatee cannot take if there is a re-marriage?

the appointment of a trustee and controls on that person?

general policing or the placing of urdens on a person@s property like the alleviation of conditions attached to a

legacy if they are too urdensome (art. ''#)?

recourse against a stipulation of inalienaility (art. ##)?

allowing courts to vary and even determine trusts (art. #$%)?

allowing courts to sustitute the purpose of a social trust (art. #$)?

and the alleviation of a urden placed on a gift (art. #3%).

prior to #$, o. ended upon death, no recourse for deprived dependents

O.7. %c%urra Artic&e 82.19Grotius finds for the testament a asis in natural law, and supports the law of intestate succession y reason of its

agreement with the presumed will of the owner. =e would therefore allow the freest power of testamentary disposition,eyond a reasonale amount reserved y law for the support of children.

/ufendorf finds the will merely to e a contrivance of positive law. ! him, the law of descent and succession is the

epression y law of the presumed will of the owner.

!he notion that the testatment is a means of transmission of private ownership from the testator to his eneficiaries is the

starting point for the theories of the #' thand #thC. Orom the right of the individual to transfer his property during hislifetime is deduced the right of testamentary disposition. Driters of this school are therefore disposed to approach the willfrom the point of view of conveyancing * the viewpoint of the 8nglish law. !hey regard intestate succession as a susitutefor the will, what the decedent would have epressed as his will, had he made one.

=egel, on the other hand, would deny lierty of testation where there are a wife and children, and would permit it only

where there is no widow and no immediate descendants and ascendants. 6n positive legislation, his views (and1iraeau@s? see p.#) found epression in the short-lived act of the 4ational convention of #'$3 which asolutely deniedthe right to make a will where there were descendants or ascendants.

ne feature of 8nglish testamentary law was the reserve (or lIgitime) which permitted the testator to e"ueath only a

part of his movales, #03 of if he left a wife and children.

nder the Orench CC, the testator may e"ueath #0 of his property is he leave ut one child, #03 if he leaves , #0% if he

leaves 3, etc.

calls for return to civil law trad. of reserve ignore urden places on citi;ens to launch lengthy, costly trials

pre-#''%5 customary reserve, propres ac"uPts0con"uPts... very complicated5 origin of prop. detrmines who inherits it

Queec &ct (#''%)5 spouses have rights in common prop., children protected y rules of intestacy

#5 Codification e disinheritance not fre"uent, restric. on righs of widows

#$',entire picture changes e fam. patrim. introduced, separate fam. law (strengthened) 9 succ. (weaker)

forced heirship L considered as answer to anomolies of law of succ.5

(#) C4

clacul. of fam. patrim. imposs.)5(#) make leg. to = dependent upon renun. of any poss. rights to fam. patrim.() part. leg. of all fam. patrim. rights to surv. sp.(3) irrev. gift 1C of fam. patrim. rights in marr. E (est, since only one that is irrevoc.)

FFO %, R#$$%S KFO '

1. 5acts

and

are married in @'' under a separation of property regime.1arriage E calls for certain gifts.

has prolems with alcoholism and con>ugal violence and is incarcerated during the marriage for years fir armedroery.


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generally has to support family of three children.

6n T$ sues for divorce, ased on mental and physical cruelty.

6n T commenced and action against , and the kids for defamation.

argues that on his death the @s :U of the family patrimony was transferred to the children.

. IssuesFies the @s V of the family patrimony ecome part of his estate which can then e transferred to the universal legatees+3. o&din/4o.

;. !atio!ingley, N. finds that the right to divide the family patrimony is not transmissile as it is a personal right that can only eeercised y the spouse, following a.%# CCQ.

!he legislator did not create the family patrimony to assist heirs or the testator@s creditors. =e created it to protect family

integrity and the surviving spouse.

Succession 5ine ,. "ardo 82.udicial act can take away the application of the rules on family patrimony.

6n this case, the right to ask for the division of the family patrimony is a personal right of the spouse, and is not

transmissile to heirs. Dhen the right of division opens y the death of one spouse, only the surviving spouse can ask forthe division.

a.%#' gives right of family memers to defend themselves (y asking that fam. /at. Be divided at a different time), it

does not give them a right to ask for it.


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es, a.'.#;. !atio/idgeon, N. looks at the facts and decides that need is shown s well as an alimentary oligation and goes on to award aportion of the estate (W#k).

&lthough mom has sufficient income, child will not e independent for a while and his health is precarious. &lthough

she did not ask for compensation, she could always ask deceased for help.

Technica&&= c&ai+ >as 2recscribed= but Ct a&&o>ed it an>a

Succession de Gi&&es d?An@ou ,. Leco+2te 82.


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D5 3(B3 82.;9Oinancial contriution (a.%, CCQ) must e determined in light of the actual situation and those that can e

reasonaly predicted.

Aieral approach must e taken in estimating future needs.

6n this case, her situation will not improve, and she must live in 1ontreal for health reasons. !herefore, she is given the

money she is asking for.

TOPIC; T!ANS5E!SINTERVIVOS CONT!ACTALAPPOINT%ENTS* P!ESENTP!OPE!T:5T!EP!OPE!T:

#) !heoretical DF !!"5 revocaility5 money was gift 67 eigile on death so L 1C B! suse"uent will no mention, so revoked see

#%#

DF !85 same deal, ut death in #$$3 so CCQ didn@t apply and gift held

!*gift future property only 1C or in a will? can@t e 67 as no divesting possile

39 Gi#ts Post-%orte+suspensive term of death, although divesting occurs immediately5 #'()

difference w0 respect to 1C5 1C L constituted at death, ut 67 gift post-mortem 2is payale at death

very vulnerale to attack y cred., future As

cf. F.O. v. O.!.5 despite words 2entre vifs, gift in marr. E considered to e 1C (death not a suspensive term)

#' para 5 made under at term? oligation and divesting occur immediately on E ut term L death#) payale during lifetime of donor? residue on death? ) 1C with option to pay furing lifetime? 4B5 donee cannot

demand payment!*C&K8OA if 67 with term as death? court will proaly say 1C so make sure in will or marriage E

Forval v. /rIfontaine (#$:), #% BK

1. 5acts1arriage E contains a clause which states that the husand gives the wife all furniture ac"uired during his life.=usands creditors want the furniture sei;ed and sold.. IssuesFoes the furniture elong to the wife therefore stopping the crerditors from sei;ing it+


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3. o&din/4o.;. !atioAemiue, N. states asically that the gift for future goods is mortis causaand therefore does not take effect until thehusand passes away. =usand remains owner.

% conditions for donation 675 #) "u@elle soit faite inter vivos? ) "ue le donateur, suivant l@epression caractIristi"ue du

code, se dIpouille et se dessaisisse actuellement de sont droit de propriItI dans la chose donnIe? 3) "ue les iens donnIssoient prIsents? %) "ue l@acceptation en soit faite par le donataire, ce "ui rend la donation irrIvocale.

!hus cannot give 67 Tfuture@ property since divesting must occur.

Aemieu v. Aindsay (#$), %# BK # (QC&)

1. 5acts

. Issues

3. o&din/

;. !atioKivard, N. finds that a gift mortis causaof all moveale property to e ac"uired in the future from husand to wife in a

marriage E does not invest right of ownership in the wife.----------------

CB Ciot v. Bowes (#$#), C< :#

1. 5acts=usand and wife have marriage E within which there is an agreement that the husand will convey all furniture andhousehold effects and that he will pay for W#k in various kinds of moveale property within the first #: years of theirmarriage that will ecome the wife@s asolute properly.Dithin the E there is a 2clause de retour where the property returns to the husand if the wife predeceases the husand.!he marriage E was registered.. Issues6s the wife the owner of the property in "uestion+

3. o&din/es.;. !atioCollins, N. 2X it is clear that such household furniture and household effects constituted a gift of 2resentproperty andecame the property of the wife as soon as the marriage was celerated.2Xdefendant divested himself of the ownership of the television set and the hall rugs in favour of the RwifeS when heought them.=e goes on to find that the clause de retour does not effect the wife@s ownership ut rather the right of ownership remainsin the wife unless she predeceases the husand.

Kegistration of the marriage contract, constituted pulic notice of the property rights of the wife in and to the said

moveales and would avail against third parties.

FFO ## (#$$3), # 8!K (d)

1. 5acts, a divorcee, dies in #$ leaving ehind two children who were minors.

had entered into a marriage E with husand that the other would ecome the sole heir in the event that one died.

!he 1arriage E was not registered until after the passed away.. Issues6s the husand entitled to the @s estate+3. o&din/4o.;. !atioAeel, N. finds that a. M of the CCA re"uire gifts mortis causamade in a marriage E to e registered and allow the

heirs of the donor to rely on a spouse@s failure to register the E to have the gift declared unenforceale against them.Kegistration must e made at the time of the marriage contract, which was not done in this case.

1oreover, arguments ased on e"uity were not appropriate? if anything, e"uity would encourage strict compliance with

the registration re"uirement in order to uphold the claims of the children. !he failure to register the gift rendered itunenforceale against the intestate heirs.

ct could not use :#$, : 0c msrr. E was pre-#$. Gifts in marr. E remianed valid w0out ct pronouncmt

instead, e-hus. failed 0c marr. E was not registered during life of D

FO v. C! (#$'), Q&C 3#

1. 5acts


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3. o&din/4o (es).;. !atioBernier, N. Oinds that the =usand did not assume any oligation efore his death. 6n the asence of an actual passing ofseisin and an immediate oligation it has to e concluded that it is not a gift inter vivos.

& donation is not 1C simple ecause the clause mentions death

8ven if 267is written on the document, it is still 1C if5 #) it includes no real oligation, there is no real

dessaisissement, il y a une condition purement suspensive.

DL5 1B1Be-hus. invokes marr. E containing institution Eelle d@hIritier (1C gift of everything to surv. sp.) in order to countercliams y intestate =s of deceased e-wife (their children)ct could not use :#$, : 0c msrr. E was pre-#$ e gifts in marr. E remianed valid w0out ct pronouncmtinstead, e-hus. failed 0c marr. E was not registered during life of D

DL5 ;;(E purported to make gift 2entre vifs eigile at death e Ct found thi to e gift 1C, despite language used

!his is ecause it ecame eigile at the time of death.

nder #%#, 1C is revocale.

furthermore, #3() likens 1C stipulation to test. disposition, ut later will had annulled this gift 1C

art. # !rans. /rov. make #%# applicale 0c death occurred post-#$$% e gift 1C L revocale (contrast w0 FAO %5death occurred prior to #$$%, therefore old law applied)

under Que. law, only annuities0KKect to trust0ene. upon death

(cf. 3'$, %:, %::)one way around this restric.5 specify legacy, although this can ring aout huge ta liaility (eception for spouse, whocan en>oy roll-over)in shareholders@ agreement, to e valid, sale0promise of sale must take place on date of E, even if performance occurs atfuture daye, namely death of one of shareholders5 Labadie c. LabrFc4ue, Aarie c. !ardif-1ItivierConclusion5 lierality L >uridical act, grat. title, grounded in intention (animus testandi0donandi), formalismGrat. acts L lieralities (wills, gifts 67, 1C, trusts) 9 other (stip. for #03 part., grat. mandate, renunciation, release of det)

D5 31


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Conclusion5 lierality L >uridical act, grat. title, grounded in intention (animus testandi0donandi), formalismGrat. acts L lieralities (wills, gifts 67, 1C, trusts) 9 other (stip. for #03 part., grat. mandate, renunciation, release of det)

indi,ision coo>nershi2


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udicial advisor is for an adult who needs assistance for certain acts.

& person under curatorship may not make a will even if it is made with the curator@s help and authori;ed (art. '#). &

will drawn up efore the curator is appointed may e annulled or the oligations may e reduced if proof of theincapacity was notorious at the time the act was performed (art. %).

6nM(!v."(!a testator changed his will after some time spent in a hospital where that psychiatrist said he was

incapale of administering his property. !he court found that he was capale at the moment he made the will * heunderstood the nature and effects of his will at the time it was made. =e had a continuing state of capacity until his nethospitali;ation.

& will made y a person under tutorship may e confirmed y the court (art. '$). =owever, the person must have

done it himself -- the tutor may not do it in his ehalf(art. '##). =owever, art $ allows for annulling if theincapacity was notorious.

& person with an advisor may make a will without assistance (art. '#). &gain, the advisor cannot have done it on hisehalf (art. '##).

4otarial wills are the est way to protect against attacks on capacity. & notary is re"uired to ensure that a testator has there"uired capacity. & notarial will makes proof of its contents (art. #$). 8.g. Goldwas a notarial will and it was upheld?Mc#$anwas a witness will that was defeated and %aredwhile a notarial codicil the notary did not do it properly(convoluted drafting, weird changes and the man was ill and dying and drugged).

Dho has sufficient interest to attack a will+ & particular legatee (Mc#$anwho was also a legal heir who would inherit ifthe will was struck down), a legatee (daughter in Gold), a tutri (wife in %ared) or universal legatees under a revoked will(M(!v."(!).

& li"uidator cannot attack the instrument that has appointed him. &s is stated inMc#$an, the eecutor protects the willagainst those who wish to challenge it.

&rt. 3 says that a person who asserts a right must prove it, and, specifically, if a person alleges nullity he must provethe facts on which he ases the allegation. !his means that we egin with a presumption of capacity and the urden lieson the person alleging incapacity to prove it. But asMc#$ansets out, once the attackers ring enough evidence ofincapacity, the urden shifts to those upholding the will to show it was made during a lucid moment. a= >ho he is/i,in/ it to. This +ust be a broad a22reciation and not @ust re2eatin/ a #or+u&a or ans>erin/ &eadin/ 4uestions.

nder the CAAC, incapacity incurred asolute nullity (whereas violence, fear, fraud and error incurred relative nullity)and this made a difference in terms of the prescription period. 4ow asolute nullity is for pulic interests and relative

%&rt. % sets out a presumption as an inference from a known fact to an unknown fact and may e estalished y law or the courtand art. %$ says that presumptions not estalished y law are left to a court@s discretion.


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nullity is for a particular interest. & vice of consent for incapacity attracts relative nullity and can only e invoked yinterested parties or those effected within 3 years (art. $:).

*ol+,. *ol+8CS 1ective (and self-interested) view.

Oactual considerations relevant in this area include whether or not there are delusions or hallucinations, whether there aredrugs and medications involved, the age of the person, their intelligence, their motivations for doing what they did, thecharacter of the will. 4one of these factors will in and of itself mean that the person was incapale at the time they madetheir will.

!here is a strong presumption in favour of capacity and freedom of willing in this area of the law.

666.# !estator must show knows5 #) giving away property? ) etent of property? 3) who giving to? %) make rationalresponses and not to leading "uestions or spouting 2tutored formula

1c8wan v. Nenkins, R#$:S


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!he principle areas of concern are fraud (i.e. undue influence or captation) and violence or fear (either physical or

moral, from the eneficiary or a third party).

!he claim of undue influence y the husand over the wife in Goldwas dismissed and it was said that it was normal for

a husand or wife to try and get in there and loy for what he or she wanted to see done with the W. !he persuasion musthowever stop short of coercion and not amount to captation.

6nMunicipal )orporation of *nited +istrict of Stoneham and Te$,esbur&v. -uelletthe testator changed his will #

days efore his death when he was sick in hospital favouring a nephew rather than the park. !here the court descriedundue influence or captation as characteri;ed y 2improper schemes, disgraceful devices and misrepresentations to

denigrate the heirs X and take their place. 2Dorming one@s way into someone@s good graces and otaining from himgifts depending on the degree of affection one has managed to inspire is not really enough. 6n addition to general flatteryand attention there must e something like the slander of the presumptive heirs and use of disgraceful schemes to alienatethe donor from his relatives in order to otain for himself what should lawfully have een theirs e.g. inciting animosityagainst an heir, reviving an old dislike, intercepting mail, controlling the testator@s access to family and friends, a notary tochange the will etc. Dhat is offensive is taking control of the testator@s free will and sustituting one@s own intention.!he degree to which the testator is susceptile to this depends on his age, state of health etc. =ere the nephew wasinsulting the mayor, keeping the legal heirs away, trying to get power of attorney and sneaking around.

!hese are etremely difficult to prove, ecause the maneuvering goes on in secret * one party to it is dead and the other

party is self-interested.

!he CCAC had given legal presumptions of undue influence to priests, lawyers and doctors used to eist. !hey were

however later aolished and it was said that they were factual presumptions which must e uilt y evidence as any other

(arts '$ and 3$ CCAC).

&rts. ':$ CCQ precludes a legacy from eing made to the notary who makes a will, his spouse or relative in the first

degree. &rt. ' precludes a legacy made to a witness. &rt. '# precludes legacies made to a memer of a foster familywhile the testator was residing in that family and the owner, director or employee of a health or social servicesestalishment who is neither a spouse or a close relative of the testator made while the testator was receiving servicesfrom the estalishment.

/rolem5 4ursing home owner takes elderly lady resident to ntario for the weekend, marries her, and gets her to

change her will in his favour. =e might fall in the art. '# eception for spouses. Could try to have the marriageannulled. r admit cannot rely on the '# automatic eclusion and >ust do undue influence in the normal way. =owvulnerale was she+ Dhat did he do to convince her to write everyone else out+ !he epress eclusion of >oint wills at

art. '% might also e used * it must really e her act.


17/40

!here was also captation.

III. The "ene#iciar* Le/atees= Donees and Other !eci2ients

General

=ere we are dealing with legatees, donees and other recipients of a lierality.

!he disposition of property in a lierality presupposes a recipient eneficiary.

6t raises issues of determinacy, enforcement and the nature of the right or entitlement created.

udgmentof death after ' years of disappearance or sooner if the death is held to e certain (e.g. victim in a plane crash).

&rt #: provides recourse for known creditors neglected y the li"uidator and art. # tells unknown creditors that

they do not have a claim against the heirs unless they provide a good reason for not having come forward (with aprescription period of 3 years).

Genealogical proof may e re"uired

&rt : * a successor who did not know of the heirship or has not come forward after # years is deemed to have

renounced and loses his status.

&rt and # for unworthy heirs y operation of law and y declaration. &rt. '% etends this from successors

generally to legatees y particular title.

&rts #3 et se" cover ingratitude in the case of a gift inter vivosas a ground of revocation * 2where the donee has

ehaved in a seriously reprehensile manner towards the donor.

TOPICB CI$ILEJISTENCE

&rts #'-%

6n order to inherit, a 4atural /erson must5 (i) eist >uridically and (ii) not e unworthy

8i9 EHistence -- Art )1& natural person must eist at the time the succession opens and this included children conceived ut not yet orn so longas they are orn alive and viale. !his ecludes children who are not conceived at the time the succession opens, thosewho are orn dead and those who are orn alive ut not viale (i.e. if a ay dies shortly after eing orn as in Allard). 6f

a child is orn during a marriage or within 3 days of its dissolution or annulment, the husand of the child@s mother ispresumed to e its father (art. ::).

&sentees are also included in the aility to inherit. &s descried aove, these are people of whom it is not known

whether they are dead or alive (art. %). !hey have ' years during which time their interest can e protected y the /ulicCurator, unless an application for a declaratory >udgment of death is made efore then if the death is certain (art. $). 6fthey do not appear within # years they are deemed to have renounced (art. :).

&rt. #'() epressly provides for the eneficiaries of trusts or sustitutions who must have the re"uired "ualities when

the disposition produces its effects e.g. usually at the death of the testator in the case of a trust.

8ii9 n>orth eirs -- Arts )( et se4.&rt identifies two classes of persons who are unworthy to inherit y operation of law5 (i) a person convicted of

making an attempt on the life of the deceased? and (ii) a person who has een deprived of parental authority and the childis eempt from the oligation to provide support in the case of a child@s succession.

&rt. # identifies 3 classes of persons who may e declared unworthy to inherit5 (i) a person guilty of cruelty towards

the deceased or having otherwise ehave towards him in a reprehensile manner? (ii) a person who has tampered with thewill? (iii) a person who has hindered the testator in the writing, amendment or revocation of the will.'

&rt. provides an eemption for oth types of unworthiness is the deceased knew of it and nonetheless conferred a

enefit on the person or modify it when he could have done so. 6t is as if the testator gave a pardon.

&rt 3 gives any successor # year after the opening of the succession or after having ecome aware of the unworthiness

to apply to the court for a declaration of another heirs unworthiness if it is not y operation of law.

&n unworthy heir is deemed never to have een an heir and there is accretion of his share to the other heirs. &rt.

sets out that a person who is unworthy and who has received property from the succession is deemed to e 2an apparentheir in ad faith. nder art. ', as an apparent heir, he must restore everything he has received under the succession.

Kepresentation is allowed (whereas it is not for a renouncing heir).

'!his may e the epansion of the area of undue influence.


18/40

!hese provisions apply to oth testate and intestate heirs. &rt. '% specifically treats the eample of an legatee y

particular title and says that unworthiness is assessed in the same way and that there may e an application to the court tohave another legatee y particular title declared unworthy.

4on-4atural /ersons may also inherit.

&rt. # says that the ect to any restrictions in its corporate constitution).

Manoliis a case where the testator left property togouvernementwithout stipulating whether he meant the provincial orfederal government. !here the court found the provision null for vagueness and uncertainty. =e did not mean othecause he used the singular, ut it was amiguous which one he meant. De cannot allow a third person to say who thelegatee is. 6t fails as a clear epression of intention.

&rt. $ sets out that legal persons can e estalished in the pulic interest or the private interest. &rt. 3 says that oth

types of persons are governed y the Code with regard to their property and their relations with other persons.

Crown corporations are legal entities estalished in the pulic interest e.g. CBC or a university * state emanations.

Aegal entities estalished for a private interest would include foundations. nincorporated associations like clus aremore prolematic.

!he case of thePrince )onsort .oundationraised this issue. =ere a testator left an immoveale to an unincorporated

non-profit charitale organi;ation with over 3 memers. 6ncorporation after the legacy is made would not workecause that incorporated foundation would no longer e the o>ect of the testator@s epression. ects the view that the clu is not 2civilly in eistence in itsunincorporated form ased on the reasoning that ecause it may own property it has a patrimony * 2since it may have adistinct patrimony, nothing in my view prevents it from inheriting. !o inherit simply means ac"uiring property. !he soledifference etween an ac"uisition through purchase or y way of a gift on the one hand and inheritance on the other is oneof formality.

Outure Aegal /ersons may not inherit. 6n'&man, the testator made a holograph will in which he left a numer ofparticular legacies which included W to aid in the estalishment of a 1ontreal /ulic Airary, W for the !uerculosisAeague and similar work and W for missionary purposes. !hese were all found to e null for vagueness and uncertainty.!he pulic lirary was not in eistence and it was unlikely that it would any time soon, the !uerculosis Aeague was sinceetinct and 2similar work was too vague, and missionary work was too vague (do not know what denomination). 2!hecourt cannot make a will for the testator? that privilege elonged to him alone. !he W went to the residual legal heir.

!he fact that the pulic lirary was not yet in eistence would not preclude a e"uest now if it was done in a trustestalished for a purpose.

1anoli v. Canada (&G) (#$$%), # 8!K (d) :'

1. 5acts!he 2government was designated eneficiary in tow separate e"uests in a holographic will.. IssuesDere the references to 2government therey making the e"uests null+3. o&din/es.;. !atio& e"uest must e considered invalid where the terms are so vague as to leave the choice of the eneficiaries to the

aritrary selection heir or testamentary li"uidator. By referring to 2government in the singular and providing no otherindication as to which level of government the will referred to, the e"uests were invalid.

/rince Consort Ooundation v. Blanchard, R#$$#S KNQ #:%' (QC&)

1. 5actse"ueaths some immoveale property on which he grants a usufruct to the during her lifetime.

is in peaceful possession of the property.

&t the time of death the was an unincorporated non-profit association which incorporates shortly thereafter so that it

can accept the e"uest made y the to the .

. IssuesCan and unincorporated association inherit+

3. o&din/es, as it is allowed to own property and has a distinct patrimony.;. !atio1alouf, N. 2Dhen such an association has een given the right to defend any action in law taken against it, the right tomanage its own affairs, the right to ac"uire and dispose of property oth moveale and immoveale X6 have difficulty inaccepting the argument that it cannot inherit. X !he Aegislature and the courts, in recognising that an association mayown property and e the o>ect of a sei;ure, are in effect implicitly admitting that it may have a patrimony. ection of a legacy since it is a separate patrimony+ 1/K says yes following this reasoning.&rt #() says that a trustee may receive a legacy intended for the trust or a legacy to e used to accomplish the o>ect of the trust,ut it does not say that a trust itself can receive such a e"uest.


19/40

Ayman v. Koyal !rust (#$#), : C< %:

1. 5acts@s well contains some e"uests which are vague.

is an heir at law and entitled to he residue of the estate.

. Issues&re the e"uests invalid as eing too vague+3. o&din/

es.;. !atio1aclennan, N. 2/ersons enefited y a will must e in eistence at the death of the testator and e clearly known to e thepersons intended y him.

6t is not necessary that the legatees e mentioned y name provided the class to which they elong e sufficiently

designated to enale their identification to e made.

& will must dispose of property in such a manner that the trustee or eecutor can e 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 leftand legatees who can compel its eecution, the e"uest is null on the grounds of vagueness and uncertainty.2!he Court cannot make a will for the testator? that privilege elonged to him alone.!he court went on to find the e"uests void for vagueness.

Dhen a will fails on the ground of vagueness and uncertainty, it is the duty of the Court to annul and set aside the

e"uest for the enefit of the legal heirs.

TOPIC< 5T!EP:SICALPE!SONS

T!STS GO$E!NED ": CC0 8a.1 T!ANS9CCLC*!he trust provisions at $#a allowed for the creation of a trust in a gift or will (could not e created for usiness

purposes).


20/40

him from the 2even hand rule to prefer income or capital eneficiaries * though he cannot take something standardlyconsidered to e income and treat it as capital or vice versa.

!he administration of the trust can e supervised y the settlor and his heirs if he is dead or the eneficiaries (art. #').

/rivate and social trusts can also e supervised y odies designated y law (art. #'()). =owever, there are none ofthese, so presumaly >ust the first kind of supervision.

&rt. #$ allows for the settlor, eneficiary or any interested person to take action against the trustee to perform his

oligations, do something in the interest of the trust, astain from an action that would harm the trust or have himremoved (even if there is a stipulation to the contrary). 6t also allows for impugning ased on fraud. &rt. #$# allows the

court to authori;e someone else to stand in for the trustee where there is negligence. 6f the trustees, settlor andeneficiaries defraud creditors together they are solidarily liale (art. #$).

!he trustee can e a natural person with the full eercise of his civil rights or a legal person authori;ed y law (art.

#'%). oint administrators, the ma>ority may act unless the settlor stipulatesunanimity (art. #33). =owever, they are solidarily liale for their administration (art. #33%) unless he makes his dissentknown (arts #33: and #33). =e may delegate duties to a third person for specific acts? however, he may only delegatediscretionary power to co-administrators (art. #33'). Felegation implies responsiility over selection of the person (art.#33'()).

!he eneficiaries must have the "ualities to receive y gift or will when the right opens (art. #'$) i.e. >uridical

eistence, e conceived, orn viale and not unworthy. &rt. # adds that the settlor may add conditions for receivinge.g. capital enefit at 3#. !he eneficiary has no real right in the property (art. ##), ut he has the right to the enefit ofthe income or the capital as set out in the trust (art. #%). !his means that the income eneficiary has the right to therevenue as produced y the trust and the capital eneficiary has the right to have the property turned over to him at thestipulated time. & eneficiary is presumed to have accepted unless he has renunciated in notarial form en minute(art.#:). =is liaility can only e engaged if he participates in fraud of creditors (art. #$).

Outure persons designated in a trust can receive so long as they are in eistence when the right opens i.e. when the

settlor dies. !his was estalished inRo&al Trustv. Tuc,erwhere 1rs. !ucker made a trust with income to herself andcapital to her children at a time when she had no children with capital going to her sisters if there were no children.


21/40

a.# outlines the elements essential to the creation of a trust5 the intention of the settlor to constitute a patrimony

devoted to a particular purpose? the transfer of property which forms the matter of the trust to this new patrimony, and theacceptance y the trustee to hold and administer the property in a patrimony distinct from his own patrimony.

!he rights of the eneficiary can e sei;ed y a eneficiary@s creditor unless the constituting act states to the contrary.

6n a personal trust, the eneficiary@s right of intervention is limited to a right to claim what the constituting act has

granted him. 6n con>unction with this limited right, the eneficiary does not, in principle, assume any liaility with respectto the creditors of the settlor or of the trustee acting e officio, even though a.#$ CCQ states that the eneficiary, thetrustee and the settlor are >ointly liale for the acts in which they participate that are performed in fraud of the rights of the

creditors of the settlor or of the trust patrimony.


22/40

1/K says that unless the susidiary scheme is impossile, against pulic order or too closely ound up with the general

power of appointment it should e upheld.

Is a trust re,ocab&e6n principle, no. nce the settlor has divested, he has divested. &rt. # says that the trustee transfers property from

his patrimony to another patrimony appropriated to a particular purpose? art. ## the property is transferred and the newpatrimony is autonomous and distinct from that of the settlor and he has no real right in it? art. #: says that acceptanceof the trust divests the settlor of the property.

=owever, art. ## says that the settlor may reserve the right to e an income or a capital eneficiary under the trust andart. # allows the settlor to reserve for himself the power to appoint the eneficiaries or determine their shares.

6f a settlor eercises arts ## and # and reserves those powers, the "uestion may e asked whether he really

divested himself of the property. 6f the trustee is >ust a nominee or a puppet and this is a are trust, it is not really a trust.

&t common law, trusts are revocale.

Koss v. Koss (#$), : udgement.=e goes on to say that such delegation of the selection of eneficiaries is valid in Queec. =owever he does point out thevagueness of the term needy, as there is no indication whether this is financial, social, or whatever kind of need. =owever,

he says it is also E if the left this up to the trustees.

Contant v. 1ercier (#$), KA 3

1. 5acts

@s spouse is e"ueathed a usufruct for life for all

@s immoveale property.n wife@s death the alance is to e li"uidated within a year y another eecutor, , and given to the poorest of @s lood

relatives.

Dife dies and the li"uidates the property ut at the end of the year still has money left over.

, @s sister, wants the residue of the estate, arguing that the no longer has the aility to distriute the money and

argues that his mandate was for only a year after the wife@s death.. Issues6s the entitled to part of the residue as a heir-at-law+

3. o&din/es.;. !atio1athieu, N.

Brodie v. Koyal !rust (#$$), : Q&C

1. 5acts


23/40

leaves his estate with s and as trustees.

ne clause in the will is such that the s can only leave a portion of the estate to their children y will.

!he children of the s denounce all interest in the estate of the which makes the s the sole eneficiaries.

. Issues&re the s entitled to the residue of the estate as full owners+

3. o&din/es.;. !atio

Chouinard, N. finds the clause null(+)

Ke 4icholls (#$'), 3% FAK (% th) 3#(C&)

1. 5actsleaves ehind a will within which is a clause to the effect that the estate was to e held in trusts y a trustee who wouldfollow the directions of a named person in distriuting the residue.!he persons named are memers of a sect and the one gives directions to the trustee to distriute the proceeds to memersof the sect who work in a mission.. Issues6s the distriution in this manner valid+3. o&din/es.

;. !atioErever, N&. Oinds that the law is in such a state of uncertainty that it should e decided on the asis of policy or principle.26t may e true that it is not clearly evident from the testatri@s language in this case that the testatri contemplated thatthe donee of the power would ever direct that the residue e given to him. !hat, however, is not a complete answer. !hereis e"ually nothing in her language that indicates that she would have any o>ection to his direction that he e given theresidue. =er words show that she intended an unfettered discretion, a discretion X that an asolute owner would have.

Poitras5 ct upheld power of appointment ased on #()arguments against general power5 adication of will making 9 infringes prin. of certainty in enef. (Brodie)counter-argum.5 trust device (!ucker5 trust does not eist for nothing, it adds to rules on gifts) 9 not modality of gift orwill

criti"ue of Brodie5 ! has disposed, i.e., not adication, ut divesting from moment of trustee@s acceptance Rsee handoutS

Poitraswas a case where the susidiary scheme was an accretion to all the grandchildren and the court treated itas a valid and reflecting the intention to treat the grandchildren e"ually.

##-3

TOPIC11 P!POSET!STS

#:ff

&ll trusts are appropriated to a particular purpose. =owever, what is usually meant here is the private trust and the socialtrust (not a personal trust). !hese ring us up to speed with the charitale purpose trust in the common law * the social

trust is even roader. !hese open up the possiilities of e"uests for the pulic good.

!he status of a foundation was unclear under the old law, ut it is now codified at #: et se".

&rt. #:' says that a foundation may e estalished (i) y social trust or (ii) corporate or statutory foundation (e.g.

/art 666 of the Quebec )ompanies Actfor non-profit corporations)

2Ooundation is something of an amiguous term since it can refer to the titulary or organi;ation itself or its mass of

assets.

Groups and associations are not technically foundations e.g. arts ' et se" on associations.

nder the CCAC a foundation could e created y a trust, a transfer to an eecutor with a direction to the eecutor to

carry out charitale purposes, or y legacy with a charge to carry out certain charitale purposes.

nder the CCQ, we still have the trust y gift or will (art. #:) and the aility to charge a legatee (art. ''#+). =owever,we have lost the transfer to the eecutor. !here is however an 2ideological gain since much roader purposes areconceived under art. #' (general interests such as cultural, educational, philanthropic, religious or scientific purposes)than were recogni;ed under the old law art. $ 2charitale and other lawful purposes.

nder the old case law, we see some dispositions meeting that re"uirement and others failing. !he point is that those

that failed for lack of certainty (/astingsand.leur&) would now e valid social trusts.

nder the CCQ5

&rt. # says that trusts can e made in a wide variety of ways. =owever, art. #: specifically says that a

foundation estalished y way of a social trust must e estalished y gift or will.

!here must e a transfer of property to an intermediary i.e. an endowment (art. # re"uires the transfer of property

from one patrimony to another and art. #'' re"uires a trustee).

/rofit-making may e there as an accessory ut art. #'() says that a social trust does not have the making of profitor the operation of an enterprise as its main o>ect and art. #:() says the same of a foundation.

!he general interest of art. #' should e interpreted lierally and in light of social utility.


24/40

!here is no pulic ody designated for supervision or enforcement (as envisioned in arts. # and #$).


25/40

nder the CCAC, it was etremely difficult to vary or terminate a trust. 6t could e done y >udicial declaration (e.g.

accelerating capital interests with a series of revocations y income eneficiaries), a private ill in the Aegislative&ssemly or y transporting the trust to another >urisdiction with friendlier variation of trust provisions e.g. &lerta.

!he CCQ provides for more intervention in arts. #$3 et se".

&rt #$3 allows for the increase of the trust patrimony y transferring property to it y a person who is not the

settlor (e.g. where a trust is set up for minor children, a parent may for ta reasons get someone else to set it up andthen make contriutions to it over time). !his is not really a variation issue.

&rt. #$% allows an interested person to make an application for the termination of a trust where it has ceased to

meet the first intention of the settlor, particularly as a result of circumstances unknown to him or unforseeale whichhave make pursuit of the purpose of the trust impossile or too onerous. !he person who applies may have a moral,material or administrative interest. 6mpossile here is assimilated into the concept of pulic order with the eceptionof things like insufficient trust property.

&rt #$% also allows in the case of a social trust it may sustitute another closely related purpose for the original

purpose. !his is a new thing * the cy-prIs doctrine. &rt. #$' says that where there is no eneficiary, property in aterminated trust devolves to the settlor or his heirs. Dhen property is given outright to an institution and theeneficiary disappears efore the settlor@s death there is lapse (art. ':) and if it disappears after the settlor@s death itis in that organi;ation@s patrimony. Dhen property is given to a trustee control for a purpose the closely relateddoctrine will apply e.g. give the W to the ointly with a third party.6t treated this as a family affair. 6t also re>ected the common law Sandersv. 1autieridea that the court should look out forfuture eneficiaries. 6t disregarded the power of appointment issue. &nd it misread the effect of renunciation * art. #says that if the eneficiary renounces it passes to co-eneficiaries. Kenunciation does not cancel or accelerate thedistriution date *"arilsaid that this re"uires the articulation of epress intention. !he court did not eamine thepossiility of varying rather than terminating the trust.

Oavouring acceleration would seem to e ased on the idea that this promotes economic efficiency, development, is anti-

feudal etc.


26/40

/ringle v. &nderson (#$#%), %


27/40

&rt. ' * where there is no spouse the entire succession devolves to the descendants.


28/40

& BC

& predeceases F.B takes all (no representation C takes &@s V y Kepresentation for othfor pre-#$$% wills unless representation (givenepressly provided) art. '%$ conditions)

(4ote5 arts. $'$ and $ CCAC admit representation insofar as 2family is used for children and grandchildren in an

un"ualified sense i.e. no 2first degree. Can have representation in a pre #$$% will that way * 2children and2grandchildren is taken to mean all descendants).

I$. 5or+a&is+* 5or+s and 5or+a&ities

TOPIC1; 5O!%SO5OSTENSI"LEGI5TS

#) 4otarial Giftrule contained in #% comes from trad. of 2rIserve 9 2lIgitime, reasons mentioned y !errI M Ae"uette (p. # csk)5give pause to donor, keep prop. in fam. patrim., guarantee irrevocaility (protects oth donor 9 donee) (cf. 1alartre)return has een aolished (unless specified in will)5 cf. Charleois (+)

elements in every gift5 (#) animus donandi (intention to give), () material elements (differ according to form5 en minutefor notarail, immed. delivery 9 possession for don manuel)##5 damages for denial to honour promise of gift, ut enef. ears urden of proof (link to #3$)re"@ts of formalism do not destroy consensualism? rather, can e considered protection of true consent#%(#)5 regis. 9 pulication re"uired to enforce gift, make opposale to 3rd parties, e.g., creditors (note5 in case of fraud,/aulian action L poss.5 cf. #3#)grat. trusts5 # does not mention regis., ut #3 modified y Bill ## this year, imposing regis. of prop. y trust (ingeneral, foundation L created y gift y notarial deed e su>ect to pulicity? poss. to set up trust y don manuel, ut notpractical)? also, if immov., $3 re"uires pulication#$5 3rd party cred. must show fraud in case of trust that did not re"uire pulication

) Fon manuel

#%()5 like notarial gift, E 0w donor 9 donee, ut w0 immed. delivery 9 possessiononly possile for mov. prop. (Benett resolved controversy under CCAC5 only for 2choses mo.)

!errI M Ae"uette (p.3#)


29/40

wants a note to e honoured which he received from the as a gift.

4ote says that the will pay the on demand W:.

!here are conflicting stories as to why the gift was made.. IssuesFoes the note amount to a don manuel, therefore circumventing the formal re"uirements of an inter vivosgift+3. o&din/4o.;. !atio

Ae!ourneau, N. finds it cannot e a don manuelas the writing itself does not amount to more than a promise and thereforelacks the re"uired form.

6 note failed as gift5 no notarial deed, only promise, i.e., no immed. delivery

also failed as 2promisory note5 see Bills of 8change &ct

1alarte v. Fecary (#$3), ' C< '%

1. 5acts, during the last days of a mortal illness, gives a check for W# and lank che"ue in an envelope on which is written

instructions to cash the check if the dies and deliver the lank check to his sister.

dies.. IssuesDas the W# check a don manuel+

3. o&din/4o.;. !atio&rchamault, N. finds that the essential characteristic of a don manuelis that the donor vests himself irrevocaly of thegift. !he don manuelhas to satisfy the re"uirements of a gift inter vivosand is not allowed to violate any of itsfundamental rules. =e goes on to find that it was a gift mortis causaand therefore not valid.

che"ue is not don manuel 0c no immed. divesting y donor, not irreovacle (deceased could have revoked y putting

stop payment up until moment of her death)

even if deceased had not specifically told / to wait until after her death, proaly still would not "ualify as don imanuel

(no immed. divesting, not irrevov.) Best to give certified che"ue

4ote5 Bills of 8change &ct prevents ank from casing che"ue after death of owner of account

under '#% CCQ, this che"ue might have een saved (as holo. will+ doutful)5 cf. Bertrand v. 1atias


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#:5 constitution of foundation y trust#5 constitution#35 registration mandatory for trust (not in force yet, assented to %0$ Bill ##)$3 para #5 trust which has as o>ect immoveales must e registered$3 para. 5 moveales L registration to etent re"uired y law#$5 no re"uirement of registration means creditor can challenge on asis of fraud#%5 notarial form5 intervivos trust when registered ecomes opposale

don manuel5 #) moveale? ) delivery? 3) immediate possession66.C -3Mearasusceptile on deliveryMeighen5 failed due to lack of delivery? donor must e deprived of o>ect"oucher5 promissory note5 failed as only a promise? no delivery, B! could have een saved if in notarial form+ecar&5 check in sealed envelope? no immediate divesting and don manuel must e irrevocale and until she died couldhave een revoked? !*if using a check make it certified66.F Sparling5 the "uestion of shares? shares traded on echange can e transferred if endorse certificates? shares ofprivate corporations are prolematic so always use a notarial deed


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Oormalistic (depending on type)

8ffect on death * efore death a legatee has no transmissile right? a will is to e taken as the epression of the

person@s last intentions hence intention is important in the production of its effects

!here are no special phrases for epressing the last intentions. Dhat counts is 2the words used, the comination of

these words, e intelligile and that they epress the testator@s intention. Ke"uirement is that it e clear andintelligile, clear that it is to take effect on death and is an epression of last intention. !his is a rule of interpretationwhich should guide us in understanding and implementing the testator@s wishes, especially in cases where the will isdrawn up without legal counsel.

&rt 3#$ casts a wide net for wills drafted outside of Queec i.e. the form prescried y the law or nationality of thetestator either at the time the disposition was made or at the time of deaath.

Common Grounds of Challenge to the 7alidity of a Dill5

(i) Aack of due eecution (formalistic deficiency)(ii) Aack of testamentary capacity(iii) !he eercise of undue influence y someone over the testator(iv) ustification like divorce or separation.

Aine of defences include things like make sure there is no prolem of form, read the draft to the testator or send a

draft, eecute and discuss the will in the asence of all persons who have a eneficial interest (ecept husands andwives), keep notes, otain a letter of opinion from a physician regarding the testator@s capacity,$insert a statement inthe will aout why the testator has disposed of property in a particular way if the disposition is unusual or a drasticchange from a previous will e.g. favouring one child or leaving an K


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re"uirement not essential such that testamentary intention can e honoured+ 8.g. an unsigned computer disk which says2!his is my will with a supporting diary entry was enough to count as a holograph will i.e. drop the handwrittenre"uirement. 6s this a new standard or an anomoly+ Can an oral will e far ehind+ 6s this a %thform of will+

/attern in the >urisprudence of the emphasis on testamentary intention or the 2sustance test5Minvillea valid holograph will even though the signature appeared at the eginning of the document?"ertrandc.

Mattiaa valid witness will even though the signature was not at the ottom of the document ut in the ody of the tetwhere one normally signs a che"ue?Pelletierc. )ota valid witness will signed in the presence of witnesses ut theinitials were omitted? Gingrasc.Ro&a valid witness will even though it was a will "uestionaire (signed y the testator,

two witness and contained the last wishes)+idonec.+idnone5Gagnona valid witness will of an etremely ill testatri even though the eneficiary held her

hand and helped her sign+ugua&c. Grenier a valid witness will where a witness added the name of a legatee at the testatri@s re"uest ut

initialed change for himself and testatri only, however, there were two witnesses to the testatri@s signature.Gunettec.Pomerleaua valid witness will even though the witnesses did not sign in presence of each other nor

did the testator sttest to his signature in the presence of the second witness.Moisanc.Moisana valid witness will even though the witnesses did not know that it was the testator@s will.Morinc.Morina valid holograph will of a man who committed suicide and left a document eside him leaving

his property to different persons even though there was no date or signature.Succession de Gaumond5+upuisa valid holograph will even though it was a document drafted y a third party

and signed y the testatri who suffered from arthritis (it failed as a witness will ecause there was only # witness).

Mercierc.Mercier5)harrona valid holograph will even though not written in the testator@s hand (dictated to theuniversal legatee and signed y testator).

Riou0a valid holograph will that was a signed and dated computer diskette along with hardcopy of print-out (thediskette was assimilated to an envelope containing a will and earing her signature).

'essardc.'essarda valid holograph will that was a pre-printed form with the name of the testatri andeneficiary were hand-written and was dated and signed y the testatri.

4ote 5 &rt. '#% only applies to witness and holograh wills, ut if there is a formality prolem with a notarial will it can esaved under art. '#3 (i.e. ump it down into a witness will or a holograph will). &rt. '() is another eception toformalism for notarial wills where it said that a failed notarial will will not e precluded from eing a valid witness will ifthere are no intials or signature on each page.

!ransitional Kules 5 &rt. % says that su>ect to s. ', the capacity re"uired to make a will and the form of the will areappraised according to the legislation in force on the day the will is made. &rt. ' says that >udicial acts which may eanulled when the new legislation comes into force may not e anulled thenceforth for any reason which is no longerrecogni;ed under the new legislation.

!he general rule is that a prolem with form attached to a pre-#$$% made will that opens after #$$% remains.=owever, if it is a ground for nullity that has een removed in the new law, it will not apply. (Foes this mean that the art.'#% new ground for saving can save pre-#$$% wills+ !he comination seems to e used this way e.g."ertrand v.Mattia)

4E5 2Nudges should make no one@s will ut their own. &nd, as a corollary, >udges must not create testamentary paperunder art. '#% themselves ut content themselves with reviewing eisting ut failed efforts y others to dispose ofproperty at death.

nder the emphasis of formalities or 2form test, the idea is that formal re"uirements are themselves the est guarantythat the intentions of the testator will e respected (1ignault)5

Gardner c./ubbard5Robertsonan unsigned document identified as a will not recogni;ed as a valid witness will.Succession de 'avaleean unsigned handwritten not recogni;ed as a valid holograph will. Succession de "a6inetanunsigned and undated handwritten document in a sealed envelope identified as last wishes not recogni;ed as a valid will.Succession de Poulina partly pre-printed and partly handwritten document in a envelope marked will with the testator@ssignature not recogni;ed as a valid holograph will. Robitaille c. Gagnona form will completed y a third person, signedy the testator and one witness not recogni;ed as a valid will.

.rancoeurc.albertan illiterate testator who was not read his will, did not declare it contained his last wished inthe presence of witnesses etc not a valid witness will.'atinc.Rehelam illiterate testator dictated his will ut thedocument was not read in the presence of witnesses, signed y the two witnesses separately and not certain it containedhis last wishes.

'avoiec."oivanan invalid attempt to make a >oint will1eilleu0c. 1eilleu0a holograph document dated after a notarial will in which the testatri 2promises all her

property to her daughter is not valid ecause it lack an une"uivocal epression of her last wishes.'ehan c.Moufrage5Renaudhandwritten documents entitled 21y last will and testament were not a valid holograph will since they were infact intended to e a draft will for a new notarial will. Succession de "oulosis a mere letter of instruction.

1oving eyond the % corners of the will and admitting all sorts of etraneous oral testimony turns the issue of whether ornot a will is valid into a matter of who comes efore the >udge rather than the document itself. 6t makes for an ad hocsystem of >ustice and a non-uniform set of >urisprudence.

Codicils (art. '3' 2testamentary dispositions which name heirs and give property) can e used to make minor changes towills (e.g. replacing the li"uidator). ewelry that the testator may have drawn up. !hese are not legally inding ut significant moral weight


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attaches to such a list and the li"uidator will >ust eecute. ften a more efficient way of dealing with such matters thanmodifying the will all the time.)

Fansereau v. Berget, R#$:#S @aimerias H te dire "ue s@il m@arrivait "uel"ue chose tout ce "ui m@appartient est H toi.. Issues6s the letter a valid will+3. o&din/es.;. !atio!he court finds that the letter meets all the conditions of a will eing written and signed y the testator and showing his

intention to dispose of his property in favour of the .

1olinari v. Dinfrey, R#$#S


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Successions de "rienwhere the document rought forward for proate was contested on the ground that no property waseing given (e leg7re 8 part gales 8 9: % et 'orraine). =ere the will was accepted for proate * even if this a goodargument it must e made in a separate proceeding on the sustance.

Dho 1ust e udgement in proate should e made opposale to as many people as possile, including particular legatees.

/roate was never meant to e an arena for contestation on the sustantive issues. 6t has always een a mechanicalvalidation of form. !o treat art. ''() as casting a wide notification net fits with a common law system where proate isan arena for contestation on the sustance.


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!he proate of a will serves no other purpose than to permit authentic copies of the will eing made. &t this point the

>udge is to determine only if the will is of the correct form and whether it emanates from the . =e is not to concernhimself with other issues which may invalidate the will, for eample whether there is another will which supersedes theone which is efore him.

Kinfret N. rules that proate >udge eceeded his >uris. y considering validity of 3 docs5 an 28nglish form (witness) will,

a notarial will 9 a letter e should have simply considred #st (8nglish form) will, which had een sumitted for proate

Brossard N. makes refrence to 1ignault v. 1alo, which confirmed Codifiers@ contention that Queec proate amounts to

2minor proate of 8nglan (2not of that inding and conclusive character) e proate only verifies validity of form of will,

ut sustantive challenges can still e made suse"uently

Succession de "riennotarial will gave A.K. W:, 9 residue to charity, then holo. will gave A. W#:, 9 rest to charities, then new holo.will gave 2H part Igale to ], , AK 9 charities>udge proated final holo. will on asis that it was written 9 signed y !many actions could have een taken to challenge this will (incapacity, content...)

if will in lang. other than Or. or 8ng., must e translated officially into one or other for proate'' raises several "uestions5(#) &fter proate, is will more conclusive+ 45 simply prima facie proof of validity, can still e contested() Dho must e summoned+ Kather than summoning all poss. interested parties, ustice, given attempts to employ e"uitale approach e state of the law L vague,strict formalism of '#3(#) L attenuated y '#%, '#3() 9 '()

Successions de "rienwhere the document rought forward for proate was contested on the ground that no property waseing given (e leg7re 8 part gales 8 9: % et 'orraine). =ere the will was accepted for proate * even if this a goodargument it must e made in a separate proceeding on the sustance.

Poulincase where Dilfred /oulin is in the hospital and the 2wills produced in evidence after his death were drafted in aflurry of activity the day efore he was to have a serious operation and two days after he has had a severe stroke. !he first

can only e a witness will (not a notarial will and not a holograph will ecause not in his own handwriting) ut thewitnesses are all saying different things aout where they signed it. !here is a prolem with the contemplation of death inthe first document * it looks like Dilfred thought he was signing a power of attorney in case of his incapacity (2confusionin his spirit). !here are three other its of paper. !hese do not constitute a single >uridical act (art. '%). !his is a totalmess and would e null under art. '#3. =owever, art '#% allows for eercise of interpreting the testamentory intentionand the >udge has the discretion to decide if what is epressed is what Dilfred wanted. !here is a mysticism here aoutthe meeting of the minds after death.

no eceptions, e.g., no oral wills, ecept '#% gives ct discretion to accept imperfect will (cf. Dilfrid /oulin case5 willproated, even though great deal of uncertainty, imperfections of form e Aegis. seems to e going in diections at once)


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5ontaine ,. Pou&in 82.;119!hree conditions5 #) applies only to holograph and witness wills? ) must have defect as to form only? 3) cannot e used

to invalidate content.

n appeal, however, this is overturned. !he fact that there was only one witness present cannot e saved y '#%. !he

legislator did not intend to rela the norms to the etent that anyone in close physical proimity to the testator is a witness.

Paradis ,. Gro&eau-!ober/e 82.;;9& holograph will is insufficient >ust ecause it epresses the last intentions of the deceased. 6t essential and

indispensale that the will e written entirely y the deceased. & will written y someone else is invalid and cannot esaved y '#%.

Succession de Pou&in ,. DuchMne 82.;;B96ntention of testator in holograph will with printed portions is fine.

$. Contents o# Testa+entar Dis2ositions

To2ic 1B T2es o# Le/acies

Aegacies are direct dispositions made y the testator of the whole or part of his property in favour of or for the enefit ofsomeone.

!hey ypass or eclude the rules on legal devolution i.e. on an intestacy.##

&rt. '3# sets out 3 types5(i) niversal legacy where one or several persons take the entire succession (art. '3).

De do not look here at what the legatee receives ut what he is entitled to receive (he has the potential to receive all

ut may not for various reasons).

niversal co-legatees are governed y the rule of e"ual sharing (Glass v. Glass).

!he fact that there are eceptions of particular items does not destroy the character of the universal title according to

art. '3: (can still e the residual person).

)arteris a case where testator leaves his wife W:, and on her death the capital would revert to the estate with the

residue left to the children if there were children. 6f there were no children then the residue to her estate. !here are nochildren and hence 1rs. Carter@s estate had the universal title.

Glassv. Glassis a case where a testator leaves all to his wife and children to do with as the wife sees fit. !here is no

allotment as etween wife and children so each is given an e"ual share. !hey all have universal title

(ii) Aegacy y General !itle where one or several persons takes the ownership of a definite share (e.g. U towife and %U to children), a dismemerment of the right of ownership of the whole (e.g. usufruct to a sister and childrenthe are ownership) or a definite share (e.g. sister #03 of the property for a usufruct and children the are ownership), orthe ownership of a dismemerment of the right of ownership of the whole or a definite share of all the immoveale ormoveale property, private property, property in a community or ac"uests, or corporeal or incorporeal property (if morespecific than one of these then it is particular title e.g. 2law ooks rather than 2moveale property).

&s with a universal legacy, eceptions of particular items doe not destroy the character of a general title (art. '3:).

Question5 Can a universal legacy co-eist with a legacy y general title+ es. 8.g. V the estate to (general) and the restto ] (universal). & prolem arises if predeceases * does V go to ] or to intestate heirs+ !his depends on whether youview ] as a general legatee (entitled to V) or as a residual universal legatee.

4ote5 &ccretion takes place where there is no allotment or allotment in e"ual shares in the case of a lapse. 8.g. legaciesy general title * V to daughter and V to her % children >ointly. 6f one child dies then her share goes to the other 3surviving children. &rts. ':: and ': on accretion for legacies y particular title also apply to >oint universal and >ointgeneral legacies.

(iii) Aegacy y /articular !itle is defined as a legacy which is neither a universal legacy or a legacy y general title (art.'3%).

/age eamples

!he 8ffect of Aegatees (&rts '%3 to '%$) * to estalish one@s status as an heir

6f you want to eclude fruits and revenues from a property then must do so eplicitly (art. '%3).

&rts '%% to '% are instances of the general principle that the legatee gets the property in the condition it was in when

the testator died.

!erms and conditions attached to a legacy do not preclude transmission (art. '%').

&rt. '% says that a legacy to a creditor is not presumed to have een made as compensation for his claim.

&rt. '%$ on representation (not for particular legacies and where testator has eplicitly ecluded it).

Dill there e accretion+ =as the testator specifically provided for lapse and accretion+

Dhen Aegacies Oail

##!hough art. '3 says that if property is left y the testator for which there is no disposition or the disposition has no effect then itremains in his intestate succession and devolves according to the rules on the legal devolution of successions.


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sufruct to &, B, and C. F is are owner. 6f & pre-deceases then her share goes to F. (Dhy no accretion here+ &ren@t &,B and C >oint general legatees and F the universal legatee+)

(#) universal legacy (A)5 '3- universal legatee L entitled to entirety e known as 2residuary legatee- '3:5 eception of particular items do not destroy univ. character- indicates !@s intention to eclude intestate heirs (unless invalidity)5 cf. Carter v. Goldstein5 alternative As (wife 9child)? since no children, D estate was entitled to all residue, intestate =s get nothing

- can e one or several univ. (co-)legatees e if several 9 one predeceases !, her share is attriuted e"ually etweenremaining co-legatees- Glass v. Glass5 in asence of allotment, co-As share residue e"ually (2take in e"ual ali"uot parts)

() Aegacy y General !itle (GA)- '33(#)5 gives vocation0entitlement of ownership of determined portion of !@s estate L 2ali"uot- '33()5 dismemerment of right of ownership of whole or of ali"uot share of succ.- '33(3)5 same, ut for all prop. of at least one of following types5 immov, mov., private, community, partnership ofac"uests, corp. or incorp.(proaly ehaustive list)- '3: also applies (part. legacy does not destroy GA)- can A co-eist w0 GA+ e.g., 26 leave #0 to ] (GA) and the rest to (residue e A) e theories5 (#) either considered to actually have only ali"uot share of #0 y implication, i.e., GA or () truly has A, in which case if ]

predecesaes !, will inherit all e important to draft will carefully- GA can e made >ointly, e.g., 2#0 to N and #0 to 1 and / e 1 9 / each get #0%, ut y accretion, if 1 predeceases !, /inherits #0? 2#0 to my daughter and #0 to her children e if one child predeceases, his share would e divided e"uallyamong other children? asically apply '::-': (although aimed at part. A)

(3) Aegacy y /articular !itle (/A)- '3%5 negative definition- particulari;ation or "ualification can make '3%, rather than '33(Y) apply, e.g., 2all of my moveales in Queec wherether are some in nt.

!ypes of Aegacies (p.%)

Carter v. 1ontreal !rust (#$#-), 3


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!he condition is supposed to e read out ut the disposition stands. Clauses limiting spouses right to remarry have noteen rendered null * a Charter challenge failed (giving an income to a spouse until she remarries is not seen as aninfringement on her changing her civil status). Could draft the will saying 2ntil her remarriage to someone with ahealthy economic status.

Cha+2enois Artic&e 82.;)9homoseual relations were against pulic morals.

Canada Trust ,. Ontario ! Co++ission 82.;9references to race and religion should e struck out.

!e 6ishart Estate 82.;B9horses should not e put to death.

Centra& 6arrant Trust ,. Le#eb,re-Ger,ais 82.;

202 unknown successions 0

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