Canada: Succession De Blanchet V. Succession De Fournier : Requirement That Special Formalities Applicable To Notarial Wills To Be Met Cumulatively – Blind Testator Who Cannot Physically Sign
Litigation and Dispute Resolution Bulletin

Summary

The authors comment on this Québec Court of Appeal judgment on the validity of a will made by a blind testator who was unable to sign it, for failing to comply with the requirements of article 719 of the Civil Code of Québec ("CCQ") for a testator who cannot sign but where the will meets the requirements of article 720 CCQ concerning a blind testator.

Introduction

Unlike a will made in the presence of witnesses or a holograph will, a notarial will is an authentic act that does not require probate by a notary or by the court to take effect. It is a solemn act that is of legal and social significance beyond the mere interest of the parties concerned. In return, particular formalities must be adhered to in order for it to be recognized as such.

In Succession de Blanchet v. Succession de Fournier¹ ,the Court of Appeal had to consider the special formalities with which a notarial will must comply, where there are a number of particular circumstances, in order to maintain its authentic nature. In the event that the applicable special formalities had not been observed, the Court then had to determine whether the will could still operate as a will made in the presence of witnesses or a holograph will and thus be probated.

I. Facts

On March 8, 2013, the late Cécile Fournier (the "Deceased") signed a notarial will before Mtre Mario Bilodeau, notary, while she was not blind and was still able to sign, in which she provided for legacies by particular title for her deceased husband's children and bequeathed the residue of her property to her niece Nicole Fournier ("Nicole") (the "2013 Will"). In the event that Nicole predeceased her, the residue of her property would instead devolve to one of her other nieces, France Blanchet ("France").

In December 2016, when the Deceased was informed of Nicole's illness and bleak prognosis, she decided to have a new notarial will prepared before Mtre Bilodeau, based on the 2013 Will, in which it was provided that if Nicole predeceased her, the residue of her property would devolve to Nicole's spouse for his services as replacement liquidator (the "2016 Will"). At the signing of the 2016 Will, after telling the notary in the presence of the witnesses that it indeed contained her last wishes, the Deceased confirmed that she was not physically able to sign. Nonetheless, the concluding provision of the 2016 Will reads as follows:

Nicole died on January 8, 2017, and the Deceased herself died on February 21, 2018. The will searches confirmed that the 2016 Will was indeed the Deceased's last will.

In her application, France sought to have the 2016 Will annulled on the grounds of incapacity and undue influence on the part of Nicole and her spouse and a declaration that the will was invalid as an authentic act given the alleged defects related to its execution. However, France abandoned her claims regarding the incapacity of the Deceased and undue influence. The action was continued by France's estate after France's death.

II. Judgment of the Superior Court

In first instance, the Superior Court judge cited articles 719 and 720 CCQ and found that the 2016 Will was read by the notary in the presence of the Deceased and two witnesses, that the Deceased confirmed that it did contain her last wishes, and that the presence of the word "testator" in the last paragraph, despite the fact that she was unable to sign, was merely a careless mistake on the part of the notary.

The trial judge stated that he was of the opinion that fairness and common sense justified a restricted interpretation of the formal testamentary requirements and the conclusion that the 2016 Will was valid as an authentic act, since it provided sufficient guarantees of reliability and unequivocally contained the last wishes of the Deceased. The judge believed that it would be contrary to the spirit of the law to deny the Deceased the ability to assert her last wishes because of the simple defect of form on the part of the notary, who had stated that the Deceased had signed the will when that was not the case.

The estate of France decided to appeal that decision to request that the 2016 Will be declared invalid as a notarial will, as well as a will made in the presence of witnesses or a holograph will, and that the 2013 Will be declared to be the last valid will of the Deceased.

III. Judgment of the Court of Appeal

a. Validity of the 2016 Will as a Notarial Will

The Court of Appeal first found that the requirements set out in article 720 CCQ in the case of a blind testator had been met, considering the fact that the 2016 Will was read to the Deceased in the presence of two witnesses, that the notary declared that he had read it in the presence of the witnesses, and that the declaration was also read in their presence.

However, the Court noted that the requirements provided in article 719 CCQ relating to a testator who cannot sign had not been met, since the concluding provision of the 2016 Will did not contain the declaration by the Deceased that she was unable to sign or the fact that the declaration was read by the notary in the presence of the witnesses, not to mention the fact that it stated that the Deceased had signed the will when that was not the case.

Unlike the trial judge, the Court was of the opinion that the special formalities concerning a testator who is unable to sign had to be followed, independently of the requirements relating to a blind testator. The Court stated that each of articles 719 to 722.1 CCQ applies to a precise, clearly identified situation and sets out special formalities to take into account, which can be cumulative. These special formalities may not be characterized as "purely incidental" and they must be referred to in the act, otherwise the act can be declared invalid as a notarial will under article 713 para. 1 CCQ. It was therefore not sufficient to simply abide by the requirements set out in article 720 CCQ; the requirements in article 719 CCQ for a testator who cannot sign also had to be met. A blind person is not necessarily unable to sign a document.

Since a notarial will requires strict compliance with such formalities, the Court of Appeal held that it was impossible to disregard the fact that the 2016 Will did not fully meet the requirements as to its form set out in article 719 CCQ and that it had to be found not to be authentic.

b. Validity of the 2016 Will as a Will Made Before Witnesses or a Holograph Will

Second, the Court of Appeal considered whether the 2016 Will could nonetheless be probated as a will made in the presence of witnesses or a holograph will, despite being invalid as a notarial will, as permitted by article 713 para. 2 CCQ.

The Court concluded that the 2016 Will essentially met the requirements for a will made in the presence of witnesses, and validated it on that basis. The 2016 Will was written by a third person (the notary) and was read to the Deceased, in the presence of two witnesses of full age, who then declared before them that the document read out contained her last wishes, and the witnesses then signed the document in her presence. Despite the fact that it was not signed by the Deceased, the Court found that the 2016 Will could be valid as a will made in the presence of witnesses under article 714 CCQ, which gives the Court the discretion to give effect to the wishes of the deceased when it is satisfied that the document unquestionably and unequivocally contains those last wishes. The Court noted that what is "essential" within the meaning of article 714 CCQ is determined by a subjective examination and amounts to ascertaining whether, given the circumstances of the case, the requirement is essential to ensure that its objectives have been achieved.

The Court relied on the trial judge's finding that the wishes of the Deceased were faithfully reproduced in the 2016 Will and that it provided sufficient guarantees of reliability, and unequivocally contained the last wishes of the Deceased, to conclude that her signature was not an essential formality in the circumstances and that the three objectives of the requirement for a signature were otherwise met.

IV. Authors' Comments

The Court of Appeal invalidated the 2016 Will as a notarial will, in view of the failure to comply with the requirements set out in article 719 CCQ, but nonetheless probated it as a will made in the presence of witnesses. The following are the two key takeaways from this judgment:

• The special requirements provided in articles 719 to 722.1 CCQ each relate to particular situations and are independent of one another. The notary must ensure that all requirements that are applicable in the circumstances are met, cumulatively, where applicable. Failure to do this will cause the act to lose its authentic nature, which is the main advantage of a notarial will as opposed to the other types of wills. This is a reminder of the particular character of a notarial will, which is not subject to review by the courts, since it does not have to be probated.
• An objective analysis of what constitutes an "essential" requirement within the meaning of article 714 CCQ was rejected by the Court. It is therefore not possible to draw up in theory a list of essential formalities and another list of formalities that are not essential. The analysis to be carried out by the Court must be subjective, in which each case is unique. Accordingly, the fact that a formality was not performed does not invalidate the act, if the purpose for which the formality was required is fully achieved by another method.

Conclusion

In conclusion, it would have been interesting to know the Court of Appeal's view regarding the impact on the validity of a notarial will of a statement that the Deceased had signed the act, when that was not the case. Given the conclusion reached by the Court, it provided no guidance on this issue when considered alone.

It will therefore be necessary to wait until a case is brought before the Court in which that is the only formal defect threatening the validity of a notarial will.

Footnote

1. Succession de Blanchet v. Succession de Fournier, 2023 QCCA 987.

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