Canada: Succession De Plante – The Death Of The Testator Does Not Result In The Demise Of Professional Secrecy

Introduction

On May 3, 2022, the Court of Appeal of Quebec handed down its decision in Succession de Plante,¹ reiterating the fundamental nature of the notary's professional secrecy and the protection of that secrecy in respect of the testamentary dispositions that preceded the testator's last will. In this decision, the Court established the tests to be met in order for a court to be able, in exceptional circumstances, to lift professional secrecy and order that access be given to a testamentary act that has been revoked.

Procedural History

After the appellants' father died, they applied to the Superior Court for an order under article 485 of the Code of Civil Procedure ("compulsory inspection") to give access to or issue a notarized act, in order to obtain a copy of the five testamentary acts preceding the last will that were executed by their father between 1998 and 2017. They wanted to see the documents so they could assess the possibility of contesting the validity of the last will. To justify their application, the appellants alleged that they had the necessary interest and that they had reasons to believe that the deceased did not have the necessary mental or physical capacity at the time his last will was signed and had been a victim of capture.

The Hon. Louis-Paul Cullen J.S.C. initially dismissed the applicants' application, concluding that at this stage of the case, the professional secrecy belonging to the testator should not be set aside.² In the opinion of the trial judge, the grounds asserted by the appellants were [translation] "not sufficient in themselves to give rise to a presumption of fact that there was incapacity or capture, based on serious, precise and consistent facts."³ The appellants then appealed that decision, alleging, among other things, that the trial judge had erred in requiring proof by presumption of fact, at this stage of the case, of incapacity or capture.

The appeal was not contested, but the Chambre des notaires du Québec filed an intervention seeking to make the Court aware of certain issues relating to the scope of a notary's professional secrecy that extend beyond the personal interests of the parties concerned. A little less than a month before the hearing, the Chambre des notaires was given permission by the Court to intervene in the case and make submissions.

Decision of the Court of Appeal

First, the Court of Appeal reiterated that professional secrecy must remain as absolute as possible and should not be interfered with unless absolutely necessary, repeating what has been said by the Supreme Court in this regard.⁴

The Court then confirmed that professional secrecy does not die with the testator and continues to protect testamentary acts that were revoked prior to the last will, citing the second paragraph of article 484 of the Code of Civil Procedure. Professional secrecy will be lifted only in exceptional circumstances if it is in the interests of justice to do so, and that determination will be made having regard to protection of the de cujus and respect for his or her true last wishes. Because of the personal and extrapatrimonial nature of professional secrecy, an heir or the liquidator of the succession has no power to relieve the notary of their professional secrecy simply because they wish to, as the Court of Appeal confirmed in Tanzer.⁵

The Court then established that in order to prove that it is in the interests of justice to give access to the revoked act, the applicant must first show that they have serious reasons to believe that they have a legal interest in contesting the validity of the last will. The applicant must then be able to raise a serious doubt as to the validity of the last testamentary act, by showing sufficiently probative reasons or indications that raise reasonable doubts or make it likely that the will is invalid. At such a preliminary stage in the case, this would not mean requiring evidence that the last will is invalid or establishing a presumption of fact that it is invalid, contrary to what the trial judge suggested in his decision.

The Court then stated that in a case in which the Court concludes that it is necessary to give access to testamentary acts that have been revoked, the order must be limited to those acts that are necessary for contesting the validity of the last will on the ground of invalidity advanced.

Although the Court of Appeal was of the opinion that the trial judge had stated the burden of proof that the appellants had to meet incorrectly, it dismissed the appeal and affirmed the decision of the Superior Court, since the error was not a decisive factor. The Court also concluded that the general allegations and thin evidence presented by the appellants at trial did not permit professional secrecy to be lifted. In addition, the Court found that the appellants' application amounted to a fishing expedition, since they wanted to obtain a copy of all testamentary acts since 1998, well before the period covered by the allegations of invalidity.

Conclusion

Succession de Plante is the first case decided by the Court of Appeal in an application for an order to give access to or issue a notarial act under article 485 of the Code of Civil Procedure.

This decision will now guide the courts in their analysis of the tests that apply to justify lifting professional secrecy and ordering that access be given to a testamentary act that has been revoked, in what the Court calls an exceptional procedure.

However, there may be changes to this analytical framework in future, since the Quebec legislature has made known its intention of amending the provisions in articles 484 and 485 of the Code of Civil Procedure concerning access to notarial documents by introducing Bill 40, on May 31, 2022.⁶ That bill reflects the legislature's desire to promote the use of information technologies in the practice of the notarial profession.

Footnotes

1. Succession de Plante, 2022 QCCA 604.

2. Plante v. Dauphinais, 2021 QCCS 5780.

3. Id., para. 7.

4. Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20, at para. 28.

5. Tanzer v. Spector, 2017 QCCA 1090, at paras. 33 and 42.

6. An Act mainly to improve access to justice by simplifying civil procedure in the Court of Québec and by bringing about the digital transformation of the notarial profession, Bill 40 (introduced on May 31, 2022), 2nd Sess., 42nd Legis. (QC).

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