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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 and ta ation 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 a death 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 the will or gift was signed. &rt. )' * '#(+) for the transitional provisions on trusts. Common conte t 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 o.ligation (/esant v. /esant) Sabados-Derkach c. Sabados .0c donor was gravely ill w0 cancer, presumption that gift is 1C (made 2in contemplation of death3) this presumption, which comes from /esant c. /esant, is re.utta.le, .ut was not re.utted in this case 4ote5 even if had, lacking necessary form to .e valid gift 67 (.lank che"ue e no immed. delivery...) TOPIC 1 LEGAL INSTIT TION AND ACTO!S I. Successions (devolution .ecause of death) A. Intestate 8sta.lished .y law when a person dies without a will. 6t is sometimes called 2legal succession3 .ecause it is a default or legal regime operating with suppletive law and presumed intention. !he inheritors are referred to as the 2heirs3 ( hritiers) !he actors are5 the deceased, the heirs and the interposed li"uidator (under the old law the testamentary e ecutor) (arts '') 9). By virtue of art. )-:, the heirs are sei;ed or step into the shoes of the deceased. <pouse gets #03 and children get -03 (children preferred to wife). ". Testate =ere the succession is contained in a testamentary act (a will, a gift mortis causa or a marriage contract). !he inheritors here are called 2legatees3 ( lgataires), .y particular, general or universal title. !he actors are5 the testator or testatri , the legatees and the interposed li"uidator (arts '') 9). &rt. '(% gives the % elements of a will5 (i) a unilateral >uridical act (no acceptance needed)? (ii) revoca.le as an e pression of one person@s will (hence a prohi.ition against >oint wills in art '(%(-) and the art. '() prohi.ition against renouncing your right to revoke your will)? (iii) a formalistic act (despite erosions in that area)? (iv) li.erality in which the testator is freely and gratuitously giving upon death. !he CCAC used the language of 2heir3 and it was not always clear whether that applied to the testate or intestate situation. !he designation for .oth heirs and legatees is now 2successors.3 & succession can .e .oth in intestate and in testate. 6f there@s a portion of the property not disposed of in the will (i.e. no residual clause) intestacy rules will apply. Bnder the characteri;ation chart in !opic # the first organ donation form is not a will .ecause it is lacking the re"uired form for a will (it is not a holograph will, notarial will or a lawyer0witness will under art. '#-). !he giving of the property in e change for taking care of the testator was held to .e a valid holograph will (though it might look like there was no li.erality .ecause of the condition attached and that it was not in contemplation of death). & court said that the 7eilleu document was not a holograph will .ecause there was no testamentary intention (art. '#%), >ust a promise (seems cra;y .ut the >urisprudence on this is all over the place, depending on the circumstances etc.). II Gi#ts Inter Vivos &rt. #,() is for .oth gifts 67 and 1C and art. #,(' is for gifts 67 specifically, saying that the donor must .e divested (.ecome the de.tor of the donee). !he donor cannot give and hold .ack at the same time. &rt. #,('(-) says that the transfer or delivery can .e delayed and this does not prevent the donor from .eing divested. =owever, art #,(, says that a gift conditional on the death of the donor is a gift 1C. &rt. #,-% re"uires that a gift .e made in notorial form (if not don manuel) Bnder the characteri;ation chart, none of these are gifts 67 .ecause they are deficient for form. !he organ donor card is not a contract either and the person giving in e change for taking care of her is not .eing immediately divested. Both the gift 67 and the gift are species of li.eralities i.e. are gratuitous and su.>ect to formalities. & gift is however a contract and is as a conse"uence .ilateral rather than unilateral. 6t was easier to see the similarities in the CCAC where gift and will appeared together. =owever, gifts in the CCQ are in the .ook on C.ligations as a species of contract. !his makes it harder now to look for something called 2!he /rinciples of Ai.eralities.3 III Substitutions !he su.stitution must .e em.odied in a gift or a will. !here are at least - successive li.eralities here and there is a charge to deliver the property over (after a stipulated time or at death).

!he 3 actors here are5 !he donor or testator, the institute ( grev) and the su.stitute (appel). !he institute is the 2owner3 of the property that the donor or testator has given her, .ut it is a separate patrimony intended for the su.stitute. !he su.stitute@s right derives from the donor or the testator, not from the institute. !he su.stitution can only e ist for 3 ranks * hence the donor or testator can give two 2ownerships3 (i.e. two su.stitutes in total * in which case the su.stitute .ecomes the institute for the second su.stitute). !he institute acts like a fiduciary with respect to the property (under the CCAC there was a distinction .etween vulgar su.stitution and fiduciary su.stitution, where the former was like a default). Bnder the CCQ, the institute may alienate (could not under the former law * indeed a stipulation of inaliena.ility was so characteristic of this institution that the presence of one would make the rules on su.stitution kick in)? however, a fund must .e created for the su.stitute with the funds. !he donor or testator can refine the terms so that the institute can do more (.ut then must do an inventory, take out insurance, .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 practice (now that there is the trust). & su.stitution could .e found to e ist 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. Bnder the CCAC ($,#a 9) the trust was confined to creation in a gift or will in the personal rather than commercial conte t. Bnder the CCQ (#-)( 9) it is e panded to purposes not >ust .eneficiaries * patrimony .y appropriation in which no one has a real right. !his is now an e tremely fle i.le device * discretionary trusts, asset protection trusts to keep assets safe from creditors, living trusts to circumvent pro.ate proceedings (though not an issue here). !he gratuitous trust (67 and 1C) * may.e a new form of li.erality. $. Gi#ts %C !his is descri.ed as a hy.rid 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 BB! - e ceptions5 #) marriage E? -) will #,%# are revoca.le unless otherwise stipulated (opposite of CCAC) Trans !u&e '1()* the 48D CCF8 applies * often comes up with marriage Es 6n marriage E5 institutional E and valid disposition? for donee5 same as legatee (e pectation 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 made .ecause of death and conditional upon death, not merely coincidental with it. & will is a gift in contemplation of death .ecause death itself will cause a situation where.y the person, who up to that moment en>oyed full ownership, will .e divested of all his possessions and they will stand waiting for a new 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 su.ordinated .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.#() <u.stitution had as its goal, generally speaking, to conserve the patrimony, to maintain the inheritance within the family. !o make a su.stitution, the testator in effect writes the will of the middle person with regard to those goods. !his was not done in this case. !oute la >urisdrudence est H l@effet "ue, lors"u@il y a am.iguitI, 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 aprJs avoir scrutI l@ensem.le du document sous l@Itude. !estator did not create usufruct. I. Trans+ission and Trans#er o# Assets

TOPIC 1 T!ANS%ISSION PON DEAT. !osenbush ,. !osenbush Kenunciation. <hares of remaining successors increase in this case intestacy rules applied5 wife gets #03, son gets -03, .ut son renounces e should his -03 accrue to wife or to -nd order of intestate successors+ since renouncing successor L deemed never to have .een successor ()%'), it is as if only one #st order successor (wife) e ists e she gets -03, -nd order (.rothers) get #03 ()'-) e solves surv. spouse pro.lem however, son retracts his renun. Cannot get wife@s ac"uired rights, so he only gets #03 that would have gone to -nd order (.ros)

!i/ht o# O2tion CCAC 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 or w0out formalities )3-5 successor has ) mths to decide L deli.eration (if cred. e ist, .est to e ercise option &<&/ to avoid lia.ility for ct costs) )3:5 successors of successor who dies .efore e ercising his option have ) mths from death of latter !i/ht o# O2tion Arts )3( et se4. &rt. )3((#) says that every successor has the right to accept or renounce the succession * i.e. no forced heirship &rt. )3((-) says that the option is indivisi.le .ut if a successor is called in several ways there is a separate option for each e.g. if are given a general legacy and a particular legacy can accept one and not the other. =owever, one cannot .e a universal legatee and take some things (e.g. cash) and not others (e.g. a run-down .uilding). !he standard period of deli.eration set out in art. )3- is ) months. 8 ample5 & dies Nuly #, #$$, leaving everything to B and failing B to C. B dies 4ov 3(, #$$, without having e ercised his option. C@s right of option .egins to run from the date of B@s death i.e. she has until 1ay 3(, #$$$. # &rt. )33 says that a successor who does not renounce within the ) months is presumed to have accepted (as long as he knows a.out the heirship). &rt. )3:(-) if an heir renounces their share accrues to co-heirs. Acce2tance* &rt )3' says that acceptance can .e e press, tacit or .y law. &n acceptance .y law would .e the failure to renounce in art. )33 or the presumed acceptance for minors, incapacitated persons and a.sent persons in art. )3, unless there is a renunciation. 8 empting the li"uidator from making an inventory or mingling property of the succession with personal property is a deemed acceptance (art. )3$) or knowing that the li"uidator is not doing making the inventory and not taking any steps (art. )%(). /aying the de.ts of the estate would .e interpreted as acceptance. !ransferring successoral rights will .e interpreted as having implied a prior acceptance (art. )%#). &rt. )%- says that mere conservative acts and acts of supervision and provisional administration or a necessary act in e ceptional circumstance to preserve the succession (e.g. changing the locks to prevent waste or damage to the property) do not entail acceptance. Fealing with private papers, clothing, memora.illia or an acceptance of a .urial cite are okay (art. )%3). 1/K says that accepting insurance .enefits or pension .enefits are also okay. &rt. )%: says that acceptance confirms the transmission which took place .y operation of law at the time of death. &cceptance is irrevoca.le unless under art. ,3: the person can show that new circumstances have su.stantially changed the e tent of his o.ligation e.g. the discovery of new facts like a creditor he could not have known a.out .efore. !here cannot .e a conditional acceptance. !enunciation* Bnlike acceptance which can lack a formal, e plicit nature, renunciation must .e .oth e press and a.ide .y formalities *recorded in notorial form en minute or .y a >udicial decision (art. )%)). Kenunciation can also operate .y law (art. )%)). <o, for instance, a.stracting or concealing property from the succession is interpreted as a renunciation (art. ):#) or not coming forward for #( years (art. ):() &rt. )%' says that a person who renounces is deemed never to have .een a successor. Kenunciations are revoca.le for #( years if not accepted .y someone else (art. )%$). Creditors are given # year in which to attack a renunciation for .eing .ased on fraudulent grounds (art. ):-). Rosenbush is a case which presents the pro.lem of the surviving spouse. =ere we have an intestacy situation where the deceased died and the property went #03 wife and -03 son. !he son renounced and the issue is whether his -03 share goes to the wife devolves to the deceased@s surviving .rothers. !he court chose the .rothers. &rts. )'( and )'# make it clear that the spouse is not preferred. -) Fe.t Aia.ility )-:(-) - de.t lia.ility imposed on =s, not /As, unless prop. in estate to which =s L entitled insuff. ('3$) ',( L corollary of )-:(-)5 operates in respect of .oth cred. of succ. 9 cred. of = or /A )-:(-)5 de.t lia.ility of =s limited to value of prop. taken .y them so long as formalities L o.served5 (#) making inventory (cf. '$$-,(#), (-) pu.lishing notices, (3) doing accting, (%) pu.lishing notice of accting this limitation 2under .en. of inventory3, e cpetion under CCAC, has .ecome rule under CCQ Ai"uidation &rts '') et se" Li4uidation link to rules on admin. of prop. of another, indivision o.>ectives5 protect =s 9 deceased@s creditors '')5 Aegis. gives list of core (! cannot e empt), yet non-e haustive stages as defin.? non-o.servance of these stages leads to lia.ility for l"dtr 9 =s recall5 separation of patrim ()-:, ',() '''5 legal seisin of l"dtr e tends temp. to all prop. (e cept pers. effects), su.>. to !@s modifications ('',)
# -

But does the ) months re-start for a situation where there is no C and B@s heirs inherit his right of option+ <ee art. )3:(#). &rt. )#$ reiterates this specifically with respect to intestate heirs.

''$5 derogation only poss. where (#) succ. L 2manifestly solvent3 9 (-) all =s agree (they then .ecome lia.le for de.ts .eyond value of prop. they take) e press stipulation .y ! prevents derogation (some argue even naming of l"dtr in will suffices)? similarly, )3, implicitly prevents derog. for minors, protected adults ,3: L disputed5 authors say should .e o.. to pu.lish notice so as to notify potential cred. Li4uidator present in all succ. (test. or intest.) =s L seised of prop. from death, owners .y accpetance, .ut l"dtr@s action causes de facto transmission ',:5 where not named, devolves of right to =s, even intestate (.est to get power of attorney) several l"dtrs can .e named (e.g., parts of est. assigned to pers. of particular e pertise) su.>ect to - regimes5 li"uidation 9 admin. of prop. of another often .ecomes trustee (smooth passage, no legal change re"uired) role L continuous until end of l"dtn or actually replaced .y ct (e.g., for negligence)5 '$# ',%5 optional e cpet for sole = '$(5 no o.. to take out insur., although often good idea of dealing w0 another >uris. where it L necessary ',$5 remuneration now possi.le, unless l"dtr L = appointment5 must have legal capacity 9 if legal person, must .e trust comp (',3)? if not provided for .y !, heirs .ecome l"dtr or choose .y ma>ority vote (',:)? term. used not important (',))? ct can appoint in e ceptional cases (',,, '$-) '$'5 if several, must act in concert (cf. #33:, #33)) delegation of specific acts, not general delegation, is possi.le5 #33' CCAC did not allow resignation w0out ct authori;ation, .ut #3:', #3:$ 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/acies pay only certain 9 e igi.le de.ts (2successoral3 9 2deceased@s3) that have not .een prescri.ed (e.g., if not due, =s pay proportionately when deadline arrives, rather than l"dtr) to raise funds to pay de.ts when insuff., cf. ,#3, ,#%, ,-:, ,-, after all de.ts 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 ,#$-,--5 de facto (all de.ts paid), de >ure (discharge of l"dtr5 ,#$(-), ,-(---) Partition indivision, .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$-%#, ,%3-%:) ,3)5 partition occurs when l"dtr L discharged, in accordance w0 proposal drawn up .y him (,3,) ,)' ff.5 general rule on return has .een reversed5 no return unless e press stipulation in will modalities5 immov. should not .e split (,:-), should .e amica.le (,:3), otherwise .y e pert 9 drawing lots (,:%)? preferential allotments possi.le (,::-:), ,:,) effects L retroactive declar. of ownership5 each = deemed to .e owner of his and only his share from moment of death (,,%) (as opposed to partition in general which is seen as transmissive of ownership) TOPIC 3 LI%ITATIONS ON 5!EEDO% O5 6ILLING !hese support provisions were introduced in #$,( and they provide for a ) month window of time in which those who was 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 that they 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 /aris which similarly imposes o.ligations rather than guarantees freedom. <uccessions in the CCQ is not in harmony with the law of persons and the family in the CCQ and hence a fragmented picture results. Oamily law for instance presents an alimentary support picture, .ut immediately upon death there is no support. Dhile there is the survival of the o.ligation to support, this gives rise to a 2psycho-social drama3 where the claimant must prove he or she needs the support (show you have received it prior to the death etc). 6n addition, so little money is o.tained via this mechanism that only family aid lawyers ever try and use it for their clients. 6nstead of a forced heirship0legitimate portion for spouse and children (reserve) approach with a fair apportionment of assets arising from status and o.ligations connected to status, we have a preference for the e ercise of freedom of choice and a drastic right to disinherit at death. !he testator may act at that moment as if spouse and children do not e ist. !here should .e a single vision of support or aliment across .oth .ooks. !he law should encourage people to fulfill their o.ligations, not evade them. & will should reflect past o.ligations and how they will reach into the future. Poulin case where Dilfred /oulin is in the hospital and the 2wills3 produced in evidence after his death were drafted in a flurry 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 the

witnesses are all saying different things a.out where they signed it. !here is a pro.lem with the contemplation of death in the first document * it looks like Dilfred thought he was signing a power of attorney in case of his incapacity (2confusion in his spirit3). !here are three other .its of paper. !hese do not constitute a single >uridical act (art. '(%). !his is a total mess and would .e null under art. '#3. =owever, art '#% allows for e ercise of interpreting the testamentory intention and the >udge has the discretion to decide if what is e pressed is what Dilfred wanted. !here is a mysticism here a.out the 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 nearest relation (.ased on presumed affection, keeping the property in the family etc). !he #''% Quebec Act made freedom of willing in testamentary matters possi.le. !he CCAC codified this choice of favouring the free disposal of property as opposed to the customary reservations in law for family mem.ers. <eisin !he concept of seisin entails the idea that one@s legal aptitude to gain eventual control of an estate@s assets is without formality * 2& legal fiction .y virtue of which succession is deemed to .e in possession without the necessity of material apprehension or >udicial proceedings.3 !his made sense under the under the CCAC, where the idea was the successor would automatically step into the shoes of the deceased and assume the de.t and lia.ilities of the deceased (art. )(' CCAC). !here was the possi.ility of limiting lia.ility through 2acceptance under .enefit of inventory,3 .ut the rule was that de.ts and lia.ilities were accepted. &rt. )(' also states that this immediate stepping in does not apply to the Crown who needed to .e >udicially put into possession. !he seisin of the e ecutor was limited in time (# year and # day) and power (could not sell property unless empowered to do so in the will). 6n the CCQ, the presumption of lia.ility limitation is reversed and in order for a successor to .e saddled with the de.ts of the estate he or she must opt out of the li"uidation process. &rt. )-:(-) says that heirs are not .ound .y o.ligations greater than the value of the property. 3 De might think of this as 2succeeding to the property3 rather than 2suceeding to the person.3 &rt. ''' says that the li"uidator has the successors seisen from the time of the opening of the succession until the estate is li"uidated. &rt. )$) says that if no successors can .e found or all have renounced the <tate is seised in the same way as an heir though it is not an heir. &rt. ),% CCAC, provided for the possi.ility of the Crown taking property that was deemed vacant if no one came forward for a succession .ut it did not use the concept of seisin. !he "uestion arises as to the usefulness of retaining the concept of seisin since the disa.ility of de.t lia.ility accompanying seisin has .een eliminated. Briere "uestions the usefulness of retaining the concept * why not say that the act of acceptance confers an entitlement on the heirs and ac"uisition of the property is held in a.eyance throughout the li"uidation. Fo not say then that the li"uidator is seised or the <tate is seised as the CCQ does. 4either the li"uidator or the <tate assumes any lia.ility for the de.ts of the property up to the value of the estate. 6 do not understand why the concept of seisin is intimately tied to the notion of de.t lia.ility in this discussion. <eisin does not necessarily coincide with ownership eg. &rt. ''' the li"uidator <eisin is not actual possession eg. !he heirs during the li"uidation process <eisin is indivisi.le <eisin is successive eg. Dith ab intestat heirs, if one renounces the ne t one steps into their shoes

#) <eisin )-:(#) - seisin5 =s (L BAs, GAs 9 intest. successors who have accepted) are 2seised3 of prop. .y death of deceased. !hey have legal possesstion, i.e., entitlement (animus) su.>ect to rules of l"dtn, thus l"dtr has de facto seisin (corpus) under ''' (right to control for purposes of l"dtn) (4ote5 /A also have seisin5 '3$) - sources of Que. law L Koman (e ception a. intestate or 2legitime3, unity of patrim) 9 Or. Custom (rule of a. intestat or 2rIserve3, plurality of patrim.)? intervening factor in CCAC5 freedom of testation (8ng.) in CCQ5 a. intestate rules .ased on Koman law (presumed affections), universality L maintained, concept of seisin survives (.ased on art. 3#, Coutume de /aris, /.%# cs.k), .ut disa.ilities gone. = steps into shoes of F, ac"uires assets 9 de.ts (limited lia.ility so long as accepts 2under .enefit of inventory3) under CCQ (9 CCAC), l"dtr (e ecutor) e ercises seisin of =s, whose rights L thus temp. suspended CCAC only allowed # year 9 # day seisin for e ec., only over mov.,? similarly, CCQ grants l"dtr 2simple administration3 L limited control, de facto seisin ('''). 4eeds ct author. to alienate immov., or e press e tension of seisin for l"dtr in will seisin is not ownership, nor actual possession, .ut rather an entitlement or right to control seisin L indivisi.le, i.e., =s rights remain in indivision until partition e .y effect of law, if one = renounces other(s) step(s) into his shoes w0out ct intervention seisin L 2legal fiction3 that allows =s to gain eventual control of estate@s assets BriJre "uestions utility of retaining concept since apparatus in Cotume de /aris has .een dismantled 8 amples of the law filling in the gaps of testamentary dispositions and having the power to alter stipulations include the provisions on the family patrimony to provide for a surviving spouse? o.ligations of support which may .e imposed on the estate?

Ourther, art. ',( says that the patrimony of the heir and the deceased are separate until li"uidation has .een completed and art. ',# says that it is the property of the succession that is used to pay creditors. &rt. '3$(-) applies to a legatee .y particular title specifically and says that he can only .e lia.le up to the value of the property he takes.

a li"uidation procedure which sees to the satisfaction of creditors@ claims first? a prohi.ition 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 inaliena.ility (art. #-#-)? allowing courts to vary and even determine trusts (art. #-$%)? allowing courts to su.stitute the purpose of a social trust (art. #-$,)? 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 82.119 Grotius 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 reasona.le amount reserved .y law for the support of children. /ufendorf finds the will merely to .e a contrivance of positive law. !C him, the law of descent and succession is the e pression .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 #'th and #,th C. Orom the right of the individual to transfer his property during his lifetime is deduced the right of testamentary disposition. Driters of this school are therefore disposed to approach the will from the point of view of conveyancing * the viewpoint of the 8nglish law. !hey regard intestate succession as a su.situte for the will, what the decedent would have e pressed as his will, had he made one. =egel, on the other hand, would deny li.erty 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 (and 1ira.eau@s? see p.-#) found e pression in the short-lived act of the 4ational convention of #'$3 which a.solutely denied the right to make a will where there were descendants or ascendants. Cne feature of 8nglish testamentary law was the reserve (or lIgitime) which permitted the testator to .e"ueath only a part of his mova.les, #03 of if he left a wife and children. Bnder the Orench CC, the testator may .e"ueath #0- of his property is he leave .ut one child, #03 if he leaves -, #0% if he leaves 3, etc. calls for return to civil law trad. of reserve ignore .urden places on citi;ens to launch lengthy, costly trials pre-#''%5 customary reserve, propres ac"uPts0con"uPts... very complicated5 origin of prop. detrmines who inherits it &ct (#''%)5 spouses have rights in common prop., children protected .y rules of intestacy #,))5 Codification e disinheritance not fre"uent, restric. on righs of widows #$'(,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 (#) CC4<5 can@t punish ungrateful children, state .ecomes dictator, young .ride could take everything from old man (-) /KC<5 minimi;es undue influence, protects children from serial polygamy, promotes good trial management 6.#, Oamily patrimony5 total disregard for ownership? find the value5 add0su.tract contri.utions !o solve pro.lems, have 3 solutions when the surviving spouse is not the universal legatee5 #) make the legacy dependent on renunciation of rights to the family patrimony? if don@t renounce, lose rights to the estate? -) have particular legacy of all rights in family patrimony to the surviving spouse? forecloses the universal legatees from claiming 3) have a gift mc in marriage E of family patrimony to spouse? !* reluctance to do so as is a commitment, BB! divorce would invalidate %) if universal legatee is the spouse, then no pro.lem 6.#$ K8181B8K5 only universal legatees can e ercise rights against family patrimony? and only the value of the asset that accrued during the marriage goes into the calculation of the O/ 6O QCB D&4! !C B8 !EALL: 4&<!Q5 will away everything that would .e in O/ .y particular legacy and leave only the rights to the surviving spouse (.ut watch out for %-#0%--) if transmissi.le, 3 practical solutions to avoid pro.lems for surv. sp. (assuming she is BA, otherwise confusion makes 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 pro.lems with alcoholism and con>ugal violence and is incarcerated during the marriage for - years fir armed ro..ery.

generally has to support family of three children. 6n T$( sues for divorce, .ased on mental and physical cruelty. 6n T,, commenced and action against , and the kids for defamation. argues that on his death the @s :(U of the family patrimony was transferred to the children. 1. Issues Fies the @s V of the family patrimony .ecome part of his estate which can then .e transferred to the universal legatees+ 3. .o&din/ 4o. ;. !atio !ingley, N. finds that the right to divide the family patrimony is not transmissi.le as it is a personal right that can only .e e ercised .y the spouse, following a.%#) CCQ. !he legislator did not create the family patrimony to assist heirs or the testator@s creditors. =e created it to protect family integrity and the surviving spouse. Succession 5ine ,. "ardo 82.1<9 Cnly notarial &ct or >udicial act can take away the application of the rules on family patrimony. 6n this case, the right to ask for the division of the family patrimony is a personal right of the spouse, and is not transmissi.le to heirs. Dhen the right of division opens .y the death of one spouse, only the surviving spouse can ask for the division. a.%#' gives right of family mem.ers to defend themselves (.y asking that fam. /at. Be divided at a different time), it does not give them a right to ask for it. <ame goes for %#). !he legislator wanted to protect the spouses, not give .enefits to third parties. see a.%- of the transitional rules. <InIcal N. concludes that only surv. sp. has right to call for part., heirs have only right to #0- value of assets if part. occurs right to fam. patrim is not patrimonial (despite ,($) legis. o.>ective must .e considered5 trans. of right to part. would simply hurt very person law is intended to protect e must .e personal to spouse (like right to separate, divorce, ask for comp. allow.) "o&duc ,. %o##att 82.;39 !herrien c. Gagnon held that family patrimony is transmissi.le, whereas <uccession de Oine c. Bordo, and turcotte v. CotI said it was not. !he right to the division of the family patrimony opens at the time of death (or separation or divorce). 6f the right to division is not transmissi.le, the surviving spouse could claim the entire patrimony, whereas, in case of separation, the spouses only have a right to half its value. !his is different from compensatory prestation (2prestation compensatoire3) which opens .y >udicial >udgement. !ransmissi.ility is the rule? non-transmissi.ility is the e ception which must .e clearly e pressed. !he division can always divided une"ually if the surviving spouse so claims. con#&ictin/ decisions de+onstrate erosion o# 2rin. o# #reedo+ o# testation ALI%ENTA!: O"LIGATIONS FFO #%(-, R#$$#S KNQ #)), 1. 5acts wills all possessions to his -nd wife. leaves a daughter from first marriage (now 33 years old) whose mother is also deceased. Oather had a good relationship with daughter and had given her some support when she had re"uested it, as well as periodically giving her gifts. 1. Issues 6s the daughter entitled to an alimentary o.ligation pursuant to )('.# CCAC+ 3. .o&din/ 4o. ;. !atio <avioe, N. finds there are two conditions which must .e fulfilled (#) that the o.ligation e isted .efore the death and (-) the one claiming is really a creditor (+). =e goes on to say that the right to an alimentary pension is tempered .y the creditors need and the de.tors a.ility to pay. !his is a "uestion of fact and is left more or less to the discretion of the >udge. =e goes on to find that she doesn@t fulfil any of the necessary conditions. <he survived for the last few years with no help. 8ven when in a .ad situation, she did not ask for support from her father. !his shows that she did not have a right to the money. <he renounced assistance. <he cannot now claim compensation .ecause she want to improve her "uality of life and pay off certain de.ts. FFO #:'$, R#$$-S KFO -:( 1. 5acts <on .y #st marriage, #- years old, contests will and wants #03rd (W-#k) -nd wife had .een made universal legatee and also received the .enefit of several life insurance policies. 1a imum that child cold receive from the W)(((( estate is W-(,#(3 (a.)('.: and )-%. * now ),, CCQ) 1. Issues 6s the son entitled to a portion of the estate+ 6f so, on what .asis+ 3. .o&din/

Qes, a.)('.# ;. !atio /idgeon, N. looks at the facts and decides that need is shown s well as an alimentary o.ligation and goes on to award a portion 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->aSuccession de Gi&&es d?An@ou ,. Leco+2te 82.A<9 a.)('.: inposes a limit on the claim of a descendent5 the amount shall not e ceed the difference .etween #0- of the share that the descendent could have claimed had the deceased died intestate and had the amount actually .een received. !he amount that the children were to receive as universal legatees under the will was clearly a.ove that limit. !he fact that the testament had directed the e ecutor not to remit the legacy until the children had reached -# years of age did not mean that the children had not received their shares. !he children therefore do not have a claim against the estate as creditors of support. !hus, descendents can only claim support when what they receive is less than #0- of what they would have received had the decesased died intestate. Baudouin N.&. held that since the Code refers to Tan heir or legatee@, it cannot include a universal legatee. !hus, children could not recover. ct re>etcs claim .0c children L in effect claiming against themselves e confusion o.iter5 approp. claim would have .een against li".@s discretion

FFO -#3) (#$$:), $ 8!K (-d) -3% (C<) 1. 5acts &t time of @s death divorce proceedings are pending .etween and spouse. Children are living with at the time of his death and a re named universal legatees in his will. Dill also provided that the testamentary li"uidators were to decide the amounts necessary for the current needs of the children. <pouse, as the children@s tutor and claiming that the children@s needs were not .eing met, wishes a monthly allowance (W3((() to support the children from @s estate. 1. Issues &re the children entitled to the monthly allowance (a.),% CCQ) for an indefinite term+ 3. .o&din/ 4o, as they are universal legatees of the estate. ;. !atio !he children "ualified as creditors of the deceased under a.:$$ .ecause he owed them support as a parent /arent, NC<. finds that a.),,(-) CCQ limits that claim to si months. 2others3 deemed to include children. he also finds that ),, states that the claim for contri.ution cannot .e made on .ehalf of children who are universal legatees of the estate. some critici;e this >udgt, saying ),), ),' deal w0 children, so that children should not .e included in ),, (-) e in fact, 2others3 originally meant ascendants, .ut :,: limits it to parents 4ote3 facts almost identical to those in <uccession d@&n>ou (confusion, =s do not have standing) FFO -3#(, R#$$)S KNQ $3 1. 5acts 6n will, recognises that child is his and provides him with W-:(k for support. 1other, as the child@s tutor, renounces the W-:(k and sues for W#.#%)1. 1. Issues 3. .o&din/

;. !atio Feslongchamps, N5 Conditions under ),% are met. Circumstances go towards allowing ma imum under a.),, (which makes reference to intestate succession at a.)))), namely #0- of #0% (.ased on % children) of -03 (share of children in intesatcy) of estate 8"uita.le solution5 goes .eyond 2means 9 needs3 test C.&5 no 2reserve3 or 2portio legitimus3 e ists in our law (as in Or. law), only legal, not e". solutions can apply e case sent .ack to <up. Ct. <up Ct. overturned decision .0c (#) law as written was not applied, namely means and needs test of ),) has to .e applied? (-)offended notion of freedom of willing? (3) ct has enough discretion in other matters to upset estate planning D5 1B)) 82.C19 a.),) CCQ5 alimentary o.ligations will .e determined .ased on the needs and assets of the seeker, the time necessary for her to .ecome autonomous, and the value of the succession (which includes assets received in the 3 years prior to the deceased@s death5 a.),'). 8ven if the asker is in need, she does not have automatic right to the ma imum allowed .y a.),,. 6n light of the fact that it is unknown how long it will take her to get .ack on her feet, and that enough W will .e left for the kids, W3(,((( is awarded.

D5 3(B3 82.C;9 Oinancial contri.ution (a.),%, ),) CCQ) must .e determined in light of the actual situation and those that can .e predicted. Ai.eral 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!S INTER VIVOS D CONT!ACT AL APPOINT%ENTS* P!ESENT P!OPE!T:E5 T !E P!OPE!T: #) !heoretical <tructure of Gifts 67 and 1C parties5 67 L general rules on Es, 1C L #,%(, i.e., spouses 9 their children (.en. of marr. E) e igi.ility5 67 L #,('5 immediately, unless su.>ect to term? 1C L #,%#5 on death revoca.ility5 67 L #,--5 irrev. .0c of divesting, .ut conditional0resolutory clause poss.? 1C L #,%#5 revoc. de.t lia.ility5 unlike legatees who are lia.le for de.ts of succ., donees not lia.le for de.ts of donor, unless #,-#, #,3( apply (similar to /As)? 1C5 lia.le .0c of )#3(-) effect of divirce5 :#$, :-(, -%:$(-), ')% #,()5 gift follows rules of E #,%( para #5 mortis causa5 gift 67 made in marriage E? para -5 only spouse and children #,('5 intervivos L immediately e igi.le B4A8<< para -5 condition attached, can include death #,%#5 1C e igi.le on death? !* revoca.le unless otherwise stipulated #,()0#,('5 divesting crucial #,-#0#,3(5 e ceptions to rule that donee not lia.le de.ts of donor associated with gift :#$5 divorce nullifies gifts 1C made in consideration of marriage? :-(5 no lapse other gifts or gifts 67 BB! court can revoke ':%5 gifts revoked .y will -%:$5 insurance to spouse void on divorce DLF 1818 19 Distinctions bet>een /i#ts I$ and %C #,(), #,('5 consensual agreement #,#,5 distinction .0w present0future prop. Dorval v. Prfontaine Ciot v. Bowes DLF !!" DF 18185 gift 1C in marriage E .ut never registered? former = lost as E had to .e registered during life of donor %#:0%#)5 property received .y gift or succession not part of family patrimony #,#$5 moves 1C from E to succession Bsual 1C gifts L movea.les, money, portion or whole estate of spouse

Dorval5 gift of all property in dwelling5 present and future movea.les L 1C as = still owner as no divesting, in his patrimony? only present property can .e given 67? BB! seen as promise only due to sloppy drafting as not specific Le#ie$%5 future property not in patrimony so not valid Ciot* o.ligation certain and specific? wife owner, so sei;ure "uashed? gift of present property? gift 67 in marriage E? 1C 1B<! .e in marriage E DF !!"5 revoca.ility5 money was gift 67 e igi.le on death so L 1C BB!"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 possi.le 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 paya.le3 at death very vulnera.le to attack .y cred., future BAs cf. F.O. v. O.!.5 despite words 2entre vifs3, gift in marr. E considered to .e 1C (death not a suspensive term) #,(' para -5 made under at term? o.ligation and divesting occur immediately on E .ut term L death #) paya.le during lifetime of donor? residue on death? -) 1C with option to pay furing lifetime? 4B5 donee cannot demand payment !* C&K8OBA if 67 with term as death? court will say 1C so make sure in will or marriage E Forval v. /rIfontaine (#$(:), #% BK ,( 1. 5acts 1arriage E contains a clause which states that the hus.and gives the wife all furniture ac"uired during his life. =us.ands creditors want the furniture sei;ed and sold. 1. Issues Foes the furniture .elong to the wife therefore stopping the crerditors from sei;ing it+

3. .o&din/ 4o. ;. !atio Aemiue , N. states .asically that the gift for future goods is mortis causa and therefore does not take effect until the hus.and passes away. =us.and remains owner. % conditions for donation 675 #) "u@elle soit faite inter vivos? -) "ue le donateur, suivant l@e pression caractIristi"ue du code, se dIpouille et se dessaisisse actuellement de sont droit de propriItI dans la chose donnIe? 3) "ue les .iens donnIs soient prIsents? %) "ue l@acceptation en soit faite par le donataire, ce "ui rend la donation irrIvoca.le. !hus cannot give 67 Tfuture@ property since divesting must occur.

Aemieu v. Aindsay (#$-)), %# BK #, (QC&) 1. 1. 3. 5acts Issues .o&din/

;. !atio Kivard, N. finds that a gift mortis causa of all movea.le property to .e ac"uired in the future from hus.and to wife in a marriage E does not invest right of ownership in the wife. ---------------CB Ciot v. Bowes (#$)#), C< :#, 1. 5acts =us.and and wife have marriage E within which there is an agreement that the hus.and will convey all furniture and household effects and that he will pay for W#(k in various kinds of movea.le property within the first #: years of their marriage that will .ecome the wife@s a.solute properly. Dithin the E there is a 2clause de retour3 where the property returns to the hus.and if the wife predeceases the hus.and. !he marriage E was registered. 1. Issues 6s the wife the owner of the property in "uestion+ 3. .o&din/ Qes. ;. !atio Collins, N. 2X it is clear that such household furniture and household effects constituted a gift of 2resent property and .ecame the property of the wife as soon as the marriage was cele.rated.3 2Xdefendant divested himself of the ownership of the television set and the hall rugs in favour of the RwifeS when he .ought them.3 =e goes on to find that the clause de retour does not effect the wife@s ownership .ut rather the right of ownership remains in the wife unless she predeceases the hus.and. Kegistration of the marriage contract, constituted pu.lic notice of the property rights of the wife in and to the said movea.les and would avail against third parties. FFO #,#, (#$$3), # 8!K (-d) -), 1. 5acts , a divorcee, dies in #$,) leaving .ehind two children who were minors. had entered into a marriage E with hus.and that the other would .ecome the sole heir in the event that one died. !he 1arriage E was not registered until after the passed away. 1. Issues 6s the hus.and entitled to the @s estate+ 3. .o&din/ 4o. ;. !atio Ae.el, N. finds that a.,() M ,() of the CCA re"uire gifts mortis causa made in a marriage E to .e registered and allow the heirs of the donor to rely on a spouse@s failure to register the E to have the gift declared unenforcea.le against them. Kegistration must .e made at the time of the marriage contract, which was not done in this case. 1oreover, arguments .ased on e"uity were not appropriate? if anything, e"uity would encourage strict compliance with the registration re"uirement in order to uphold the claims of the children. !he failure to register the gift rendered it unenforcea.le against the intestate heirs. ct could not use :#$, :-( .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 <pouses enter into a marriage E which amongst other things provides that the hus.and will pay the wife W#(k on his death or .ankruptcy. 6n the E he also reserves the right to pay the W#(k at any time during the marriage (in whole or in part) and there is a reversion clause which re"uires all the a.ove gifts to .e returned if the wife predeceases the hus.and. 1. Issues Cn divorce, is the wife entitled to demand the W#(k (is the gift mortis causa)+

3. .o&din/ 4o (Qes). ;. !atio Bernier, N. Oinds that the =us.and did not assume any o.ligation .efore his death. 6n the a.sence of an actual passing of seisin and an immediate o.ligation 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 2673is written on the document, it is still 1C if5 #) it includes no real o.ligation, there is no real dessaisissement, il y a une condition purement suspensive. DL5 1B1B e -hus.. invokes marr. E containing institution Eelle d@hIritier (1C gift of everything to surv. sp.) in order to counter cliams .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 pronouncmt instead, e -hus.. failed .0c marr. E was not registered during life of D DL5 1;;( E purported to make gift 2entre vifs3 e igi.le at death e Ct found thi to .e gift 1C, despite language used !his is .ecause it .ecame e igi.le at the time of death. Bnder #,%#, 1C is revoca.le. furthermore, )#3(-) likens 1C stipulation to test. disposition, .ut later will had annulled this gift 1C art. #() !rans. /rov. make #,%# applica.le .0c death occurred post-#$$% e gift 1C L revoca.le (contrast w0 FAO -%-,5 death occurred prior to #$$%, therefore old law applied) under Que. law, only annuities0KK</ issued .y insurance comp. may .e validly made su.>ect to trust0.ene. upon death (cf. -3'$, -%:(, -%::) one way around this restric.5 specify legacy, although this can .ring a.out huge ta lia.ility (e ception for spouse, who can en>oy roll-over) in shareholders@ agreement, to .e valid, sale0promise of sale must take place on date of E, even if performance occurs at future daye, namely death of one of shareholders5 Labadie c. LabrFc4ue, Aa.rie c. !ardif-1Itivier Conclusion5 li.erality L >uridical act, grat. title, grounded in intention (animus testandi0donandi), formalism Grat. acts L li.eralities (wills, gifts 67, 1C, trusts) 9 other (stip. for #03 part., grat. mandate, renunciation, release of de.t) D5 31<; 82.<19 &t issue is whether a clause in a marriage contract is a gift 67 or a gift 1C. 6n a gift 67, the gift must .e irrevoca.le. !his is the way the gift is made in the clause. Ourthermore, in case the other party dies, the donor is freed from the o.ligation. <uch a mention would not .e necessary if this was a gift 1C. !he clause also stipulated the possi.ility of the starting to pay prior to the marriage, which is incompati.le with a gift 1C. !he Tdessaisissement@ of the goods took place at the time of the marriage, even if app. gave the possi.ility to decide the ultimate time of delivery. !hus, this a gift 67 and pursuant to a.:#$ CCQ, does not apply. Succession de 6o&#e ,. "ouchard 82.1(C9 !his is a gift 1C since the payment is tied to his death, even if he reserved the right to pay earlier. 4either divorce nor"uent will revoked this. Bergeron v. Beauchesne, R#$,,S KNQ --3$ 1. 5acts has a marriage with spouse which designates her as the universal legatee. also has a retirement savings account which is in the name of his son. Oollowing @s death, spouse refuses to give the son the certificates to the account or the value. 1. Issues 6s the son entitled to the savings+ 3. .o&din/ 4o. ;. !atio Gervais, N. e amines whether the clause in the savings E which provides the son with the contents of the account on his father@s death is a gift mortis causa and finds that it is (to .e a gift inter vivos the .eneficiary must .e a.le to access it .efore death). 6t therefore falls into the patrimony of the and thus to the universal legatee. was KK</ clause 2stipulation pour autrui3 or gift 1C+ !o .e 2stip. pour autrui3, underlying E had to .e valid, yet not valid gift .0c not in valid form (notarial act) furthermore, made in contemplation of death e gift 1C, which can only .e upheld if made in marr. E or if valid as legacy e fails on .oth counts under Que. law, only annuities0KK</ issued .y insurance comp. may .e validly made su.>ect to trust0.ene. upon death (cf. -3'$, -%:(, -%::) one way around this restric.5 specify legacy, although this can .ring a.out huge ta lia.ility (e ception for spouse, who can en>oy roll-over) in shareholders@ agreement, to .e valid, sale0promise of sale must take place on date of E, even if performance occurs at future daye, namely death of one of shareholders5 Aa.adie c. Aa.rJc"ue, Aa.rie c. !ardif-1Itivier

Conclusion5 li.erality L >uridical act, grat. title, grounded in intention (animus testandi0donandi), formalism Grat. acts L li.eralities (wills, gifts 67, 1C, trusts) 9 other (stip. for #03 part., grat. mandate, renunciation, release of de.t) indi,ision G coo>nershi2 <tarting point is indivision #(3(5 no one compelled to remain in that state #(-:ff5 can .e continued if #) heirs agree? -) testator stipulated (country homes) ,3'5 must have good reason to remain in indivision5 if e tended, limited to : years Keasons5 ,3$5 family .usiness? ,%(5 family residence and movea.les ,%35 keep property to avoid loss (dodgy stockmarket, economy) ,%%0,%:5 duration of indivision ,3)5 partition only when li"uidator discharged5 #) through will? -) accounting and partition proposal !* not a good idea to go to court as is e pensive ,%$ff5 how 2shares3 are composed? ,:-5 immovea.les? .usinesses L try to keep together !* partition often done .y (literally) drawing lots ,::0,:)0,:,5 preferential allotments descri.ed? family residence to spouse? .usiness to child involved /artition L retroactive declaration of ownership? deemed sei;ed from opeining ,,%5 effects of retroactive ownership II. The "ene#actor* Donors= Testators= Sett&ors

TOPIC A GI5TS D !ING %O!TAL ILLNESS Gifts Mortal Illness #,-(5 deemed incapacity so invalid L presumption !* given #,#$ do we need this+ Q8< as remedy against coercion ( /oulin Y#) Sabados5 - .lank checks to children? no certainty of e tent of o.ligation? o.>ect indeterminate? not don manuel as no capacity BB! court said 1C and def. Oailed to re.ut Pesant5 gift made in contemplation of death is re.utted if has the characteristics of 67 gift <a.ados-Ferkach v. <a.ados, R#$,-S C/ 3, 1. 5acts Oather of and is stricken with terminal cancer and gives son two .lank checks. &fter his death, the testament reveals that all children are universal legatees. 1. Issues Das this a valid gift inter vivos (don manuel)+ 3. .o&din/ 4o. ;. !atio BIlanger, N. !he su.>ective condition of the one ill has to .e considered. 6n the present case the evidence revealed that the donor had .ecome indifferent and lost all hope and serenity. !his state of spirit is the .asis for the incapacity to enter into gifts inter vivos which is foreseen in a.')- CCAC. C the other hand, nothing indicates that the che"ues were given to the s as compensation for services rendered. Ourthermore, the fact that the s also pleaded with the to reverse his decision and distri.ute the money .etween all children shows that seisin had never passed. Oinally, the delivery of .lank checks does not give rise to a presumption of acceptance. K&!6C5 &rt ')- CCAC says that gifts purporting to .e inter vivos are void, as presumed to .e made in contemplation of death, when they are made during the supposed mortal illness of the donor, whether it .e followed or not .y his death, unless circumstances tend to render them valid. Ke.utting the presumption here amounts to showing that it was not a gift made in contemplation of death (Pesant). Feath cannot .e in the soul of the donor in order to give inter vivos. 6t was here. !he father was indifferent, without hope, in the final phase of his illness etc. !here were no factors that would make it seem like it was not given in contemplation of death. &rt. #,-( CCQ carries this rule forward in the new law * however, it is now worded in such a way that the gift is null as having .een made mortis causa when made during the deemed mortal illness. Bnder art. #,#$, a gift mortis causa is null unless it is made in a marriage contract or will. 4otice though that art. #,-( keeps the re.utta.ility of the presumption of nullity that was in the old law (unless circumstances tend to render it valid). TOPIC ) TESTA%ENTA!: CAPACIT: !he rules are the same here as they were under the CCAC. &rt. '(3 says that every person having the re"uired capacity may .y will provide otherwise than as .y law of the devolution upon his death of the whole or part of his property. &rt. '(' says that the capacity of the testator is considered at the time the will was made. &rt %( of the Transitional Rules reinforces this when it says that .oth the capacity and the form of the will are appraised according to the legislation in force on the day that the will is made. Capacity is assumed until incapacity is proved .y the person alleging it. Dhat is at issue here is the small window of time immediately prior to the making of the will and immediately after.

<tatus5 &dulthood provides a presumption of capacity (art. #:%) Dith the e ception of articles of little value, an unemancipated minor may not dispose of his property (art. '(,) though art. %( allows for determining the nature of his funeral and disposal of his .ody with written parental consent. &n emancipated minor who is under simple emancipation (art. #)' * a minor who is #) or over and has filed for it with the consent of his tutor) is in the same position as an unemancipated minor. =owever, a minor with full emancipation (i.e. who is married * art #':) has all the civil rights of an adult (art. #')) and can therefore make a will. & curatorship is for an adult with a permanent incapacity. & tutorship for a person with partial or temporary incapacity e.g. in the case of a stroke. & >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 o.ligations may .e reduced if proof of the incapacity was notorious at the time the act was performed (art. -,%). 6n M( ! v. "( ! a testator changed his will after some time spent in a hospital where that psychiatrist said he was incapa.le of administering his property. !he court found that he was capa.le at the moment he made the will * he understood the nature and effects of his will at the time it was made. =e had a continuing state of capacity until his ne t hospitali;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 the incapacity was notorious. & person with an advisor may make a will without assistance (art. '#(). &gain, the advisor cannot have done it on his .ehalf (art. '##). 4otarial wills are the .est way to protect against attacks on capacity. & notary is re"uired to ensure that a testator has the re"uired capacity. & notarial will makes proof of its contents (art. -,#$). 8.g. Gold was a notarial will and it was upheld? Mc#$an was a witness will that was defeated and %ared while 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#$an who was also a legal heir who would inherit if the will was struck down), a legatee (daughter in Gold), a tutri (wife in %ared) or universal legatees under a revoked will (M( ! v. "( !). & li"uidator cannot attack the instrument that has appointed him. &s is stated in Mc#$an, the e ecutor protects the will against 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 prove the facts on which he .ases the allegation. !his means that we .egin with a presumption of capacity and the .urden lies on the person alleging incapacity to prove it. But as Mc#$an sets out, once the attackers .ring enough evidence of incapacity, the .urden shifts to those upholding the will to show it was made during a lucid moment. <o, what we have is a legal presumption of capacity (art. #:%), .ut a court may decide when there is enough evidence of incapacity to turn the legal presumption of capacity to a factual presumption of incapacity. % !his is how it was e plained in Gold. <o, what we have is the court deciding to make the factual presumption of incapacity in Mc#$an and refusing to do so in Gold. &'Ewan ,. (en)ins 8SCC 1<AB9 O&C!<5 !he 8nglish will (and power of attorney in it) is .eing contested .y a first cousin of the deceased who is a particular legatee in the will and will inherit as a legal heir if the will is struck down. !he testator signed the will -: days .efore his death. !he pl alleges nullity for fraud and incapacity. =8AF5 !he pl has a sufficient interest to attack the estate. Cnce there is enough evidence to raise a prima facie presumption of incapacity, the onus is thrown on the party who wants to sustain the validity of the instrument to show that although not at one time in his right mind, he has recovered and was at that moment. 6n order to avoid a will it is not necessary that the testator .e totally insane * the rule is that a disposing mind is one a.le to comprehend the essential elements of will-making, property, o.>ects, >ust claims to consideration, revocation of e isting dispositions and the like. 1erely to .e a.le to make rational responses is not enough, nor to repeat a tutored formula or simple terms. !here must .e a power to hold the essential field of the mind in some degree of appreciation as a whole. !he testator was very sick when the will was made. =e always agreed to everything during that hospital stay * consent or refusal could .e achieved with the use of leading "uestions. !he earlier power of attorney was also o.tained after the stroke when he was in a state of disinterest and not capa.le of discernment. =is mind was ha.itually in a state of confusion, incapa.le of discernment and no satisfactory evidence has .een adduced that the instruments were e ecuted during periods of lucid intervals. The &'Ewan test re4uires the testator to discern the eHtent o# the 2ro2ert-= that he is /i,in/ it a>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. Bnder the CAAC, incapacity incurred a.solute nullity (whereas violence, fear, fraud and error incurred relative nullity) and this made a difference in terms of the prescription period. 4ow a.solute nullity is for pu.lic interests and relative

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

nullity is for a particular interest. & vice of consent for incapacity attracts relative nullity and can only .e invoked .y interested parties or those effected within 3 years (art. -$-:). *ol+ ,. *ol+ 8CS 1<)39 O&C!<5 ': year old testatri enters the hospital and makes one notarial will favouring daughter .efore her operation and a second one % days later after the operation favouring sons. !he daughter is challenging the will .ecause her mother was drugged. =8AF5 !he will was read in the presence of witnesses, the testatri signed in her own hand etc. !he fact that the first will was drawn up at her own re"uest and the second .y appeals made to her .y her hus.and does not make it amount to captation. !he .urden of proof was not shifted to those upholding the will .ecause there was not a prima facie case of incompetence esta.lished which would allow the shifting. !he pl did not .ring enough evidence that she was suffering from temporary incapacity at that time. !he pl is complaining a.out the contents of the will rather than her mother@s capacity to make it. &ll evidence is on the same footing * e pert and lay. 6ndeed, the court ignores the doctor@s evidence * he has 2a theory3 a.out death-.ed will making and is against it. !akes what the notary says seriously. 4urses say she looked alert. : !he emphasis here is that this is not an area for 2theories3? evidence must .e analy;ed and appreciated in its factual conte t. &n eccentricity is not necessarily evidence of incapacity. 6n Ro&al Institution for the Advancement of 'earning v. ames Scott, a rich eccentric lady who lived in an impoverished way left her W to the university and this was challenged .y estranged nephews who thought that 2she must .e cra;y3 .ecause of the way that she lived. !he court said that this was their su.>ective (and self-interested) view. Oactual considerations relevant in this area include whether or not there are delusions or hallucinations, whether there are drugs and medications involved, the age of the person, their intelligence, their motivations for doing what they did, the character of the will. 4one of these factors will in and of itself mean that the person was incapa.le at the time they made their 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? -) e tent of property? 3) who giving to? %) make rational responses and not to leading "uestions or spouting 2tutored formula3 1c8wan v. Nenkins, R#$:,S <CK '#$ 1. 5acts /rior to his death, writes a will and gives a power of attorney to . had tried to get a power of attorney .y having sign a .lank piece of paper around which a power of attorney would then .e written (which the did, not knowing that it was to .e used for a power of attorney). .e"ueaths all his property to his e ecutors as trustees. !he will calls for some small gifts to .e made to certain relatives with the residue to .e paid to the <alvation &rmy and the Canadian Ked Cross. , who received a small gift, is also an heir at law and wants the will declared void on the .asis of incapacity. 1. Issues &re the will and power of attorney null for lack of mental capacity+ 3. .o&din/ Qes. ;. !atio !aschereau, N. 2Xif a prima facie case is made against the (uris tantum presumption of mental sanity, the person supporting the instrument has the .urden to show that the testator was of sound mind.3 2Xin order to avoid a will, it is not necessary that the testator .e totall& insane, and the rule is that a disposing mind and memory id one a.le to comprehend, of its own initiative and volition, the essential elements of will making, property, o.>ects, >ust claims to consideration, revocation of e isting dispositions and the like. 21erely to .e a.le to make rational responses is not enough, nor to repeat a tutored formula of simple terms. !here must .e a power to hold the essential field of the mind in some degree of appreciation as a whole.33 2Rthe S was an heir ab intestat, and had an interest in o.taining a declaration of nullity of the power of attorney, so as to increase the value of the estate, of which she was an heir-at-law.3 2!he principal function of the e ecutor is to see to the proper e ecution of the will. =e does not represent the estate? he is the mandatory of the deceased, and it is from him only that he holds his powers. &n action to set aside a will cannot .e directed against him.3 =e goes on to find the will and power of attorney null for lack of mental capacity. Gold v. Gold, R#$)3S C< %: 1. 5acts enters into hospital suffering from an aggravation of a cancer. is informed that she will need an operation and therefore has her notary visit her in hospital where a will is drawn up. Furing an e ploratory, the cancer is determined to .e terminal, and only a small operation is performed. <hortly after the operation draws up a second will with the notary the contents of which was .ased largely on recommendations to the .y the who had discussed the matter with @s hus.and (@s father). 1. Issues

Enowing the testator for a long time (especially prior to the illness e.g. Mc#$an) would .e important.

Dho is the .urden of proof of proving mental capacity on+ 3. .o&din/ !he . ;. !atio & will should not .e annulled on the ground of undue influence and captation .ecause it was drafted and e ecuted .y the testatri as the result of advice, representations and re"uests of her hus.and. Brossard, N. 2Xwhether or not there has .een captation depends on the mental condition of the testator at the time the advice, re"uests of attempts to persuade were made? this "uestion is therefore closely related to and interdependent with that of the testators mental capacity at the time the will was e ecuted.3 2Xthe real "uestion upon which revolves the present issue is the following5 Das Rthe S in possession of her intellectual faculties to the e tent that she was a.le to comprehend the meaning and to measure the effects of the will which she e ecuted and to assent to it .y an act of her own free will+ !his is primarily and essentially a "uestion of facts.3 =e goes on to find that as the was in control of her mental faculties at the times during which the wills were made and signed5 2!he .urden was conse"uently on he plaintiff to make conclusive evidence of the e istence of such a temporary impairment at the times when Rthe S was to comprehend the meaning and to measure the effects of the changes to her RearlierS will X and to assent to the new will X em.odying these changes.3 Qared v. Zigayer, R#$:,S BK #$, 1. 5acts is in hospital dying of cancer. writes up a will which is notarised, then, after .eing urged to .y his .rother who wanted the wife cut out of the will, adds a codicil to it at a later date which revokes or modifies a of provisions relating to his infant daughter. 8ssentially, the changes are such that a regular income from a property is revoked and for it is su.stituted a lump sum payment paya.le when the daughter reaches ma>ority. &t time of writing the codicil, is in much pain and is .eing given large doses of pain relievers. 1. Issues Das the codicil valid+ 3. .o&din/ 4o. ;. !atio <t. Nac"ues, N. finds that the clauses of the codicil were complicated and difficult even for a professional to understand. 8vidence showed that the had .een presented the modified document and had signed it within : minutes. 6n consdieration of the drugs he was taking, the structure of the document, he was not a.le to understand the document, and therefore, it did not represent his inetntions or the e pression of his free will. 1(N) v. B(N), N8 $%-:$, 1. 5acts is in and out of mental hospital prior to his death. !he /sychiatrist at the hospital delivers the re"uired documents to have the @s property administered .y the pu.lic curator according to article ) of the &ct respecting the /u.lic Curator. Furing this time he writes - wills, the earlier one which names the @s as universal legatees, and the later one which names the s. &.,3% CCAC for.ids one who is an im.ecile, demented or insane from disposing anything .y testament. 1. Issues Foes the filing of documents pursuant to &.) of the a.ove &ct sufficient .asis for a finding of incapacity in &.,3% CCAC+ 3. .o&din/ 4o. ;. !atio CrIpeau, N. says that the incapacity in "uestion is one having to do with the administration of property and is not a declaration that the was incapa.le for the purposes of a.,3% CCAC. 6t is prima facie proof however, .ut in this case the presumption was re.utted. La/o ,. Lachaine 82.13A9 <erious Consideration must .e given to testimony of witnesses of the will. Caption is a lack of consent as a result of lies and maneuvres of potential .eneficiaries who e ercise undue influence upon the testator. -,(35 proof .y preponderance of the evidence. '(3, '(' CCQ5 presumption of capacity. & simple dou.t does not kill presumption of sanity. Thibau&t ,. Gui&bau&t 82.1;<9 &gain, must demonstrate incapcity .y a preponderance of the evidence. TOPIC C O TSIDE INTE!5E!ENCE !his is an area where the concern is with the validity of consent. Consent may .e vitiated .y error, fraud, violence and fear. 8rror may occur here in circumstances of a holograph will and the person did not know he was writing a will or a will where a testator did not know his wife was pregnant and omitted to make a legacy for the child.

!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 hus.and over the wife in Gold was dismissed and it was said that it was normal for a hus.and or wife to try and get in there and lo..y for what he or she wanted to see done with the W. !he persuasion must however stop short of coercion and not amount to captation. 6n Municipal )orporation of *nited +istrict of Stoneham and Te$,esbur& v. -uellet the testator changed his will #days .efore his death when he was sick in hospital favouring a nephew rather than the park. !here the court descri.ed undue influence or captation as characteri;ed .y 2improper schemes, disgraceful devices and misrepresentations to denigrate the heirs X and take their place.3 2Dorming one@s way into someone@s good graces and o.taining from him gifts depending on the degree of affection one has managed to inspire3 is not really enough. 6n addition to general flattery and attention there must .e something like the slander of the presumptive heirs and use of disgraceful schemes to alienate the donor from his relatives in order to o.tain for himself what should lawfully have .een theirs e.g. inciting animosity against an heir, reviving an old dislike, intercepting mail, controlling the testator@s access to family and friends, a notary to change the will etc. Dhat is offensive is taking control of the testator@s free will and su.stituting one@s own intention. !he degree to which the testator is suscepti.le to this depends on his age, state of health etc. =ere the nephew was insulting the mayor, keeping the legal heirs away, trying to get power of attorney and sneaking around. !hese are e tremely difficult to prove, .ecause the maneuvering goes on in secret * one party to it is dead and the other party is self-interested. !he CCAC had given legal presumptions of undue influence to priests, lawyers and doctors used to e ist. !hey were however later a.olished and it was said that they were factual presumptions which must .e .uilt .y evidence as any other (arts ')$ 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 of a foster family while the testator was residing in that family and the owner, director or employee of a health or social services esta.lishment who is neither a spouse or a close relative of the testator made while the testator was receiving services from the esta.lishment.) /ro.lem5 4ursing home owner takes elderly lady resident to Cntario for the weekend, marries her, and gets her to change her will in his favour. =e might fall in the art. ')# e ception for spouses. Could try to have the marriage annulled. Cr admit cannot rely on the ')# automatic e clusion and >ust do undue influence in the normal way. =ow vulnera.le was she+ Dhat did he do to convince her to write everyone else out+ !he e press e clusion of >oint wills at art. '(% might also .e used * it must really .e her act. <toneham M !ewkes.ury v. Cuellet, R#$'$S - <CK #'1. 5acts - 1onths .efore is death, makes a will in which he leaves a large piece of wooded land to the (to .e made into a park) and W-(( to the . #- days .efore his death, while ill and hospitalised, he makes a - nd will in which he makes the his sole universal legatee. did not like the mayor and told the that the was going to cut the wood on the land, in contradiction of the @s wishes for it to remain a natural wooded area. 1. Issues Fid the use undue influence to have the will changed+ 6f so, is this enough to have the latest will nulled+ 3. .o&din/ Qes. Qes (+). ;. !atio Beet;, N. 2!he presumptions of arts. $$3 and --(- CC are (uris tantum, and they may .e re.utted .y contrary evidence, which depending on the circumstances may .e strong enough to not merely neutralise them .ut overturn them completely.3 La2&ante-Gin/ras ,. Gin/ras 82.1A)9 Fefendant was guilty of captation .y not allowing children to see his father, .y o.taining mandate to take care of his things when there was need to do so .ecause of the testator@s health, and without speaking to the children. <he also assisted in writing the will. Pa/I ,. Si+ard 82.1AC9 a.%( transitional rules5 capacity re"uired is that which was re"uired at the time the will was made. 6n this case, the testator did not have capacity at the time he made the will. 6t seems odd that testator would have forgotten his daughter, or that the defendant would not have reminded him, knowing his concern for her. /lus, the will was already written at the time the notary arrived. !his creates a strong presumption in favour of caption. La#ortune ,. "our4ue 82.1AB9 Gift to health service is without effect if it was made at the time the testator was receiving services there (a.')# CCQ). !his applies to wills made .efore #$$% since it a pu.lic order rule. Dhat is covered .y a.')# should .e given a .raod interpretation, despite the fact that restricition to the freedom of willing should .e minimi;ed. Aegislator wanted to protect vulnera.le people in positions of dependence. !hus it applies to all paid residences that provide care, assistance, surveillance. !hus, pursuant to a.')#, this gift is null.

&rt. #,#' is the e"uivalent provision for gifts.

!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 li.erality. !he disposition of property in a li.erality presupposes a recipient .eneficiary. 6t raises issues of determinacy, enforcement and the nature of the right or entitlement created. <u.stitute5 &rt #-3$ * the rights of a su.stitute not yet conceived are e ercised .y the person designated .y the grantor to act as curator to the su.stitution and who accepts the office or where there is no person someone appointed .y the court e.g. the /u.lic Curator. !rust5 &rt #-,' * supervision .y the settlor or his heirs or the .eneficiary? art #-,$ * the rights of a .eneficiary not yet conceived fall to the person designated .y the settlor or a person appointed .y the court e.g. the /u.lic Curator. <cenarios of factual indeterminacy5 &rt )#) -- Dhen persons die and it is impossi.le to determine which survived the other if one is called to the succession of the other then they are deemed to have died at the same time and the succession of each devolves to the person who would have .een called to take it in his place. &rt )#' * a.sentees presumed to .e alive at the time the succession opens may inherit. &rt ,% identifies these people as those of whom it is not known whether they are alive. &rt. $- allows for an application of a declaratory >udgment of death after ' years of disappearance or sooner if the death is held to .e certain (e.g. victim in a plane crash). &rt ,#: provides recourse for known creditors neglected .y the li"uidator and art. ,#) tells unknown creditors that they do not have a claim against the heirs unless they provide a good reason for not having come forward (with a prescription period of 3 years). Genealogical proof may .e re"uired &rt ):( * a successor who did not know of the heirship or has not come forward after #( years is deemed to have renounced and loses his status. &rt )-( and )-# for unworthy heirs .y operation of law and .y declaration. &rt. '%( e tends this from successors generally to legatees .y particular title. &rts #,3) et se" cover ingratitude in the case of a gift inter vivos as a ground of revocation * 2where the donee has .ehaved in a seriously reprehensi.le manner towards the donor.3 TOPIC B CI$IL EJISTENCE &rts )#'-)-% 6n order to inherit, a 4atural /erson must5 (i) e ist >uridically and (ii) not .e unworthy 8i9 EHistence -- Art )1C & natural person must e ist at the time the succession opens and this included children conceived .ut not yet .orn so long as they are .orn alive and via.le. !his e cludes children who are not conceived at the time the succession opens, those who are .orn dead and those who are .orn alive .ut not via.le (i.e. if a .a.y 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 hus.and of the child@s mother is presumed to .e its father (art. :-:). &.sentees are also included in the a.ility to inherit. &s descri.ed a.ove, 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 /u.lic Curator, unless an application for a declaratory >udgment of death is made .efore then if the death is certain (art. $-). 6f they do not appear within #( years they are deemed to have renounced (art. ):(). &rt. )#'(-) e pressly provides for the .eneficiaries of trusts or su.stitutions 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 )1( 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 child is e empt from the o.ligation 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 reprehensi.le manner? (ii) a person who has tampered with the will? (iii) a person who has hindered the testator in the writing, amendment or revocation of the will. ' &rt. )-- provides an e emption 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 apparent heir in .ad faith.3 Bnder 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 e pansion of the area of undue influence.

!hese provisions apply to .oth testate and intestate heirs. &rt. '%( specifically treats the e ample 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 to have another legatee .y particular title declared unworthy. 4on-4atural /ersons may also inherit. &rt. )#, says that the <tate may receive .y will and that legal persons may receive .y will such property as they may legally hold (e.g. in the case of a private legal person, su.>ect to any restrictions in its corporate constitution). Manoli is a case where the testator left property to gouvernement without stipulating whether he meant the provincial or federal government. !here the court found the provision null for vagueness and uncertainty. =e did not mean .oth .ecause he used the singular, .ut it was am.iguous which one he meant. De cannot allow a third person to say who the legatee is. 6t fails as a clear e pression of intention. &rt. -$, sets out that legal persons can .e esta.lished in the pu.lic 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 esta.lished in the pu.lic interest e.g. CBC or a university * state emanations. Aegal entities esta.lished for a private interest would include foundations. Bnincorporated associations like clu.s are more pro.lematic. !he case of the Prince )onsort .oundation raised this issue. =ere a testator left an immovea.le to an unincorporated non-profit charita.le organi;ation with over 3(( mem.ers. 6ncorporation after the legacy is made would not work .ecause that incorporated foundation would no longer .e the o.>ect of the testator@s e pression. <o rather than relying on its newly incorporated status, the court instead re>ects the view that the clu. is not 2civilly in e istence3 in its unincorporated form .ased on the reasoning that .ecause it may own property it has a patrimony * 2since it may have a distinct patrimony, nothing in my view prevents it from inheriting. !o inherit simply means ac"uiring property. !he sole difference .etween an ac"uisition through purchase or .y way of a gift on the one hand and inheritance on the other is one of formality.3, Outure Aegal /ersons may not inherit. 6n '&man, the testator made a holograph will in which he left a of particular legacies which included W to aid in the esta.lishment of a 1ontreal /u.lic Ai.rary, W for the !u.erculosis Aeague and similar work and W for missionary purposes. !hese were all found to .e null for vagueness and uncertainty. !he pu.lic li.rary was not in e istence and it was unlikely that it would any time soon, the !u.erculosis Aeague was since e tinct and 2similar work3 was too vague, and missionary work was too vague (do not know what denomination). 2!he court cannot make a will for the testator? that privilege .elonged to him alone.3 !he W went to the residual legal heir. !he fact that the pu.lic li.rary was not yet in e istence would not preclude a .e"uest now if it was done in a trust esta.lished for a purpose. 1anoli v. Canada (&G) (#$$%), #( 8!K (-d) :' 1. 5acts !he 2government3 was designated .eneficiary in tow separate .e"uests in a holographic will. 1. Issues Dere the references to 2government3 there.y making the .e"uests null+ 3. .o&din/ Qes. ;. !atio & .e"uest must .e considered invalid where the terms are so vague as to leave the choice of the .eneficiaries to the ar.itrary selection heir or testamentary li"uidator. By referring to 2government3 in the singular and providing no other indication as to which level of government the will referred to, the .e"uests were invalid. /rince Consort Ooundation v. Blanchard, R#$$#S KNQ #:%' (QC&) 1. 5acts .e"ueaths some immovea.le 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 . 1. Issues Can and unincorporated association inherit+ 3. .o&din/ Qes, as it is allowed to own property and has a distinct patrimony. ;. !atio 1alouf, N. 2Dhen such an association has .een given the right to defend any action in law taken against it, the right to manage its own affairs, the right to ac"uire and dispose of property .oth movea.le and immovea.le X6 have difficulty in accepting the argument that it cannot inherit. X !he Aegislature and the courts, in recognising that an association may own property and .e the o.>ect of a sei;ure, are in effect implicitly admitting that it may have a patrimony. <ince it may have a distinct patrimony, nothing X prevents it from inheriting. !o inherit simply means ac"uiring property. !he sole difference .etween an ac"uisition through purchase or .y way of a gift on one hand and inheritance on the other hand is one of formality.3 2&lthough the Ooundation was incorporated for the purpose of receiving the said .e"uests, the Ooundation as such is not mentioned in the will. 6t is the Aodge and not the Ooundation which is declared .y the testator to .e the .eneficiary of the .e"uests referred to it. !he Ooundation cannot change the will .y simply stating that it is the .eneficiary.3

Foes this mean that a trust can .e the o.>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.

Ayman v. Koyal !rust (#$#)), :( C< %:( 1. 5acts @s well contains some .e"uests which are vague. is an heir at law and entitled to he residue of the estate. 1. Issues &re the .e"uests invalid as .eing too vague+ 3. .o&din/ Qes. ;. !atio 1aclennan, N. 2/ersons .enefited .y a will must .e in e istence at the death of the testator and .e clearly known to .e the persons intended .y him. 6t is not necessary that the legatees .e mentioned .y name provided the class to which they .elong .e sufficiently designated to ena.le their identification to .e made. & will must dispose of property in such a manner that the trustee or e ecutor can .e compelled to carry out its provisions if he does not voluntarily do so, and if the will does not clearly specify the legatees to whom the property is left and legatees who can compel its e ecution, the .e"uest is null on the grounds of vagueness and uncertainty.3 2!he Court cannot make a will for the testator? that privilege .elonged to him alone.3 !he court went on to find the .e"uests void for vagueness. Dhen a will fails on the ground of vagueness and uncertainty, it is the duty of the Court to annul and set aside the .e"uest for the .enefit of the legal heirs. TOPIC < 5 T !E P.:SICAL PE!SONS T! STS GO$E!NED ": CC0 8a.C1 T!ANS9 CCLC* !he trust provisions at $,#a allowed for the creation of a trust in a gift or will (could not .e created for .usiness purposes). <erious "uestions arose here as to the nature of ownership * who owned the trust+ !he .eneficiaries (who only had an e pectant right)+ !he trustee (who had possession .ut could not use the property for their own .enefit)+ !he settlor (who had divested)+ Ro&al Trust v. Tuc,er said that the civil law trust created a sui generis form of ownership for the trustees (since ownership is usually a su.>ective right i.e. for one@ own en>oyment or .enefit). 6t upheld the re>ection of the common law split .etween legal ownership and e"uita.le ownership and a unilateral declaration of trust. 8nglish law is not incorporated in the law of trusts. 8nglish law can .e relied on only insofar as it is not inconsistent with the Code. !his is no longer really relevant since there are detailed provisions on the trust in the CCQ. CC0* !he CCQ places trusts in the category of powers rather than rights. /owers can e ist without corresponding rights e.g. li"uidators, a tutors, curators, managers. &rt. #-)( identifies the patrimony of the trust as appropriated to a particular purpose and art. #-)# says that it is autonomous and distinct from the patrimony of the settlor, trustee and .eneficiary none of whom have a real right in it. !itle is in the trust itself which has a distinct e istence with its own de.ts and assets. 6t is not a legal person, .ut it operates like that * has its own property, enters into contracts, can sue and .e sued, has assets and de.ts. &rt. #-)( says that a trust results from an act (i.e. a >uridical act). !his means that it can .e (i) e press (contract .y onerous title or gratuitous title or .y will i.e. can .e used now for .usiness purposes) or (ii) arise .y operation of law (art. #-)-) e.g. a trust to guarantee the payment of support or an alimentary pension under art. :$#. !here is no such thing then as a constructive trust or a resulting trust esta.lished .y action. &rt. #-)# says that property must .e transferred. &rt. #-)% says that a trust is constituted .y the acceptance .y the trustee. &rt. #-): says that the acceptance (i) divests the settlor (though art. #-': says that the settlor may also .e a trustee as long as there is another trustee who is neither .eneficiary or settlor and art. #-,# and #-,- allows for the reservation of some powers)? (ii) charges the trustee with seeing to the appropriation and administration of the trust patrimony? and (iii) is sufficient to esta.lish the right of the .eneficiary with certainty. &rt. #-)) sets out three types of trusts5 (i) personal? (ii) private? and (iii) social. /rivate trusts (arts #-), and #-)$) are trusts that can .e esta.lished for .usiness purposes, investments, scholarships, pensions and so on and they are new in law. /ersonal trusts are limited to - ranks and the capital .eneficiary (art #-'#) * this .y analogy with su.stitution at art. #--# which is limited to the institute and - ranks of su.stitutes. &nd art. #-'- sets a limit of #(( years for the opening of the trust and .eing a .eneficiary under it. /rivate and social trusts may .e perpetual (art. #-'3). Bnder administration of the trust, the trustee has the control and e clusive administration of the trust patrimony * titles are drawn up in his name and he has the e ercise of all the rights pertaining to the patrimony and may take any measure to secure its appropriation (art. #-',). &rt. #-',(-) says that the trustee act as the administrator of the property of others charged with full administration set out at arts #3() et se". !his means that he can .orrow, charge, sell, lease, hypothecate (art. #3(') .ut he must act with prudence and diligence (art. #3($) and he may sue and .e sued in respect of anything connected with his administration (art. #3#)). =e cannot e ercise his powers in his own interest (art. #3#(), must disclose a conflict of interest (art. #3##), not mingle the administered property with his own property (art. #3#3), act impartially as .etween .eneficiaries (art. #3#' * this is a version of the common law 2even hand3 rule as .etween income and capital .eneficiaries). !he trust itself can limit the trustee powers and the he must stay within the powers of the constituting act (art. #3(,)? .ut it can also e empt

him from the 2even hand rule3 to prefer income or capital .eneficiaries * though he cannot take something standardly considered 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 of these, so >ust the first kind of supervision. &rt. #-$( allows for the settlor, .eneficiary or any interested person to take action against the trustee to perform his o.ligations, do something in the interest of the trust, a.stain from an action that would harm the trust or have him removed (even if there is a stipulation to the contrary). 6t also allows for impugning .ased on fraud. &rt. #-$# allows the court to authori;e someone else to stand in for the trustee where there is negligence. 6f the trustees, settlor and .eneficiaries defraud creditors together they are solidarily lia.le (art. #-$-). !he trustee can .e a natural person with the full e ercise of his civil rights or a legal person authori;ed .y law (art. #-'%). <. #'( of the Act Respecting Trust )ompanies and Savings )ompanies sets out that later category i.e. trust companies. Dhere there are several trustees, only one need accept (art. #-)%). 4ormally, the settlor appoints the trustees (art. #-')). =owever, the trust does not fail for lack of a trustee * art. #-'' allows the court to appoint a trustee where the settlor had failed to do so. Dhere there are >oint administrators, the ma>ority may act unless the settlor stipulates unanimity (art. #33-). =owever, they are solidarily lia.le for their administration (art. #33%) unless he makes his dissent known (arts #33: and #33)). =e may delegate duties to a third person for specific acts? however, he may only delegate discretionary power to co-administrators (art. #33'). Felegation implies responsi.ility over selection of the person (art. #33'(-)). !he .eneficiaries must have the "ualities to receive .y gift or will when the right opens (art. #-'$) i.e. >uridical e istence, .e conceived, .orn via.le and not unworthy. &rt. #-,( adds that the settlor may add conditions for receiving e.g. capital .enefit at 3#. !he .eneficiary has no real right in the property (art. #-)#), .ut he has the right to the .enefit of the income or the capital as set out in the trust (art. #-,%). !his means that the income .eneficiary has the right to the revenue as produced .y the trust and the capital .eneficiary has the right to have the property turned over to him at the stipulated time. & .eneficiary is presumed to have accepted unless he has renunciated in notarial form en minute (art. #-,:). =is lia.ility can only .e engaged if he participates in fraud of creditors (art. #-$-). Outure persons designated in a trust can receive so long as they are in e istence when the right opens i.e. when the settlor dies. !his was esta.lished in Ro&al Trust v. Tuc,er where 1rs. !ucker made a trust with income to herself and capital to her children at a time when she had no children with capital going to her sisters if there were no children. <he wanted to void the trust once she had % children. =owever, the trust was made valid .y the transfer of property to the trustee. 6t would now seem to .e codified in art. #-'$. &rt. #-)# creates this distinct patrimony and arts #-'# and #-'- allow for several ranks and a limit of #(( years for the first rank to open. 6t would seem o.vious that a trust can .e valid for future persons. &rt. #-%- also sets out the re"uirement of having the "uality to receive .y gift or will at the time the su.stitution opens and where there are several ranks only one need have the "ualities to receive. !ucker v. Koyal !rust, R#$,-S # <CK -:( 1. 5acts concludes a deed of donation and trust with the where .y he conveyed a of securities. is to receive revenues during his lifetime .ut on death the residue is to .e divided amongst the @s children and grandchildren. later changes his mind and wants the property returned. 1. Issues Foes the acceptance of the trust property .y the trust make the trust irrevoca.le (must the .eneficiary have accepted)+ 6s the deed of donation null given that the .eneficiaries were not alive at the time of its conclusion+ 3. .o&din/ Qes (4o). ;. !atio Beet;, N. 2!he grantor is no longer the owner of property conveyed in trust5 if it is a testamentary trust, he is dead, and if it is trust created .y way of gift inter vivos, it is essential to its validity that the grantor has actually and divested himself of the property conveyed in trust. /roperty cannot .e .oth given and retained. Cwnership is not vested in the .eneficiary of the income, who is only a creditor of the trustee. 6t is also not vested during the trust in the .eneficiary of the capital5 in a great many cases he ranks second or third and has not even .een .orn or conceived.3 =e goes on to find that a deed for the .enefit of un.orn children of the donor is valid. 2<uspensive or resolutive conditions can validly .e attached to gifts inter vivos.3 26f the donor reserve to himself the right to dispose of or take .ack at pleasure some o.>ect included in the gift, or a sum of money out of the property given, the gift holds good for the remainder, .ut is void as to the part reserved, which continues to .elong to the donor, e cept in gifts .y contract of marriage. =owever, for gifts inter vivos not to .e invalidated as made in contemplation of death, the death of the donor must not .e the essential condition.3 a,$,# must .e given a wide and li.eral interpretation, favouring an e tension of the contractual and testamentary freedom of the parties and in keeping with the purpose of the legislation, which is to ena.le individuals to do .y gift 67 what it was already possi.le to do in part .y will, including the creation of a .enefit intended for a non-e istent person. /u.lic order and the law do not it. !o-a& Trust ,. 6ebster 82.1BB9 (see summary at p.%() 5ortin Artic&e 82.11(9

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 the acceptance .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 lia.ility with respect to the creditors of the settlor or of the trustee acting e officio, even though a.#-$- CCQ states that the .eneficiary, the trustee and the settlor are >ointly lia.le 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. <ee p.-#' for Fiscretionary and social trust. #-)(-#-'3 Compare trusts (#-'#) vs. su.stitution (#--#) #-$$-#3'( for trustee@s o.ligations. #-'$-#-$$ for .eneficiaries TOPIC 1( PO6E!S O5 APPOINT%ENTE5AC LTK D?KLI!E !his is when a person names someone in his or her will who is to use his or her discretion in distri.uting the assets in an estate e.g. Ross where the testator of a holograph will appointed his .rother to take roughly half the estate and distri.ute the other have .etween some charities and the poor of his relations 2as he may >udge .est.3 !he court descri.ed this as giving to the .rother 2a faculty of selection amongst persons coming within that description.3 !he CCQ allows for this at arts #-,- and #-,3 in the conte t of trusts and art. #-:: in the conte t of su.stitutions. Bnder art. #-::, the grantor may give the institute the power to determine the share of the su.stitutes. Bnder art. #-,-, the settlor can give the trustee (or another third party) the power to appoint the .eneficiaries and determine their shares. &rt. #-,3(-) says that he cannot appoint .eneficiaries for his own interest, .ut the first paragraph gives him the power to e ercise his power as he sees fit. !his is a discretionary trust. !his means that the trustee need not give .eneficiaries e"ual amounts. !he .eneficiary cannot compel the trustee to e ercise his discretion in any particular way or in any particular .eneficiary@s favour. & .eneficiary has no rights and cannot call for property until the trustee e ercises his power and designates him. 6t is used sometimes in the conte t of a disa.led adult. !he trustee has a power rather than a patrimonial right or an o.ligation. 6t is an authori;ation to select or a delegation of power. !here are two types of powers of appointment5 (i) Aimited or <pecial where there is a designated class ( un tel genre de personnes) like the family circle, the lawful issue or among children. !hese delegations are generally accepta.le i.e. not void for uncertainty. )ontant v. Mercier where the designated class was the poorest of the testator@s relatives. +or v. "rosseau was a #$(% case where the testator charged his trustees the power to give the surplus of any assets of the estate to his .rothers, sisters, nieces and nephews most in need. !he court said that this was 2a well-defined and restricted class * a class whose mem.ers can .e accurately determined .y our courts.3 (ii) General or Bnlimited where there is no designated class. =ere the trustee may appoint anyone as .eneficiaries. 4o class has .een esta.lished .y the grantor. !hese delegations have .een consistently struck down. "rodie (#$$( C&) is the case where the testator@s children were given the power to appoint .eneficiaries with a su.sidiary scheme to the grandchildren. !he court says that the lack of a designation of the .eneficiaries means that it is uncertain and void. !he general idea is that it infringes the principle of the certainty of the .eneficiary and is an unaccepta.le a.dication of will-making. /ower is seen as a modality of gratuitous disposition and certainty is essential (as it is with gifts and wills). Brierley critici;es this reasoning as confusing mere power given to someone other than the trustee and the legitimate power of a trustee. Dhile it is true that gifts and wills re"uire .eneficiaries, the trust is a different creature. 6t is not a.dicating the power to make a will? it is the disposal of property to a separate patrimony. .eneficiaries do not need to e ist at the time the trust is created (Tuc,er). !he identification is achieved .y designation. 6t is this that ma imi;es testamentary intention. &t common law, unlimited powers of appointment are valid. 4ow, even if a court wanted to over-rule "rodie it cannot .ecause the determination of the class has .een codified in art. #-,-(-) where it says that for personal and private trusts, the power to appoint the .eneficiaries may only .e e ercised if the class of persons from which he may appoint is clearly determined in the constituting act. !his applies even to trusts drawn up prior to #$$%, since &rt. '# of the Transitional Provisions says that the effects and e tinction of trusts is governed .y the new code. !he other issue raised in "rodie is the validity of the subsidiar- sche+e to the grandchildren in a trust where the power of appointment is void for uncertainty. Kather than saying that the fall-.ack is that su.sidiary scheme (i.e. the grandchildren), the court said that if a general power of appointment is null it takes everything out with it and the intestate heirs take. 1/K says that the su.sidiary scheme should have .een interpreted as an alternate legacy. Rodrigue was a case where the court struck down the su.sidiary scheme and went to the intestate heirs. "eullac was a case where the court followed "rodie on the general power of appointment .ut not on the su.sidiary scheme * treat it as the testator@s intention to avoid an intestacy. Poitras was a case where the su.sidiary scheme was an accretion to all the grandchildren and the court treated it as a valid and reflecting the intention to treat the grandchildren e"ually.

1/K says that unless the su.sidiary scheme is impossi.le, against pu.lic order or too closely .ound up with the general power of appointment it should .e upheld. Is a trust re,ocab&eL 6n principle, no. Cnce 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 new patrimony is autonomous and distinct from that of the settlor and he has no real right in it? art. #-): says that acceptance of 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 and art. #-,- allows the settlor to reserve for himself the power to appoint the .eneficiaries or determine their shares. 6f a settlor e ercises 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 revoca.le.

Koss v. Koss (#,$)), -: <CK -:( 1. 5acts makes a holographic will in which he leaves half of his estate to his .rother (the ) and half to .e used .y his .rother to promote /rotestant charities in and dispersed amongst poor relations as the sees fit. 1. Issues 6s the will valid (can the .rother .e appointed to dispose of the assets as he sees fit)+ 3. .o&din/ Qes (yes). ;. !atio <ir =enry <trong, CN. Oinds that 2poor relations3 must .e interpreted as meaning 2heirs at law3. 2!he word 2poor3 is too vague and uncertain to have any meaning attached to it, and must therefore .e re>ected. !he word 2relations,3 then standing alone, must .e restricted to some particular class, for if it were to .e construed generally as meaning all relatives it would .e impossi.le ever to carry out the directions of the will. !he line must therefore .e drawn somewhere, and can only .e drawn so as to e cluded all e cept those whom the law, in the case of an intestacy, recognises as the proper class among whom to divide the property of a deceased person who dies intestate, namely his heirs.3

ForI v. Brosseau (#$(%), #3 BK :3, 1. 5acts leaves directions in his will that his estate is to .e li"uidated and the cash turned over to his .rother (the ) and nephews (the is one) for administration and distri.ution. !he money is to .e held in trust and the ma>ority of the trustees are to decide the most needy of the .rothers, sisters, nephews and nieces and distri.ute the money accordingly. 1. Issues 6s the granting of a discretionary control over the .eneficiaries valid even when the decision criteria is vague+ 3. .o&din/ Qes. ;. !atio =all, N. 26t is an absolute .e"uest .ecause it unconditionally imposes upon the trustees the duty of divesting themselves and the estate of the surplus referred to. 6t limits its application to a well defined and restricted class-a class whose mem.ers can .e accurately determined .y our courts-and to whom therefore, even .efore such power of selection has .een e ercised, a right of action e ists to compel the trustees to discharge the duty imposed on them .y the will, and under such action the court could compel the e ecution of the trust, or give effect to it .y its own >udgement.3 =e goes on to say that such delegation of the selection of .eneficiaries is valid in =owever he does point out the vagueness of the term needy, as there is no indication whether this is financial, social, or whatever kind of need. =owever, he says it is also CE if the left this up to the trustees. Contant v. 1ercier (#,$(), -( KA 3,1. 5acts @s spouse is .e"ueathed a usufruct for life for all @s immovea.le property. Cn wife@s death the .alance is to .e li"uidated within a year .y another e ecutor, , 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 a.ility to distri.ute the money and argues that his mandate was for only a year after the wife@s death. 1. Issues 6s the entitled to part of the residue as a heir-at-law+ 3. .o&din/ Qes. ;. !atio 1athieu, N. Brodie v. Koyal !rust (#$$(), -: Q&C -1. 5acts

leaves his estate with s and as trustees. Cne 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. 1. Issues &re the s entitled to the residue of the estate as full owners+ 3. .o&din/ Qes. ;. !atio Chouinard, N. finds the clause null(+) Ke 4icholls (#$,'), 3% FAK (%th) 3-#(CC&) 1. 5acts leaves .ehind a will within which is a clause to the effect that the estate was to .e held in trusts .y a trustee who would follow the directions of a named person in distri.uting the residue. !he persons named are mem.ers of a sect and the one gives directions to the trustee to distri.ute the proceeds to mem.ers of the sect who work in a mission. 1. Issues 6s the distri.ution in this manner valid+ 3. .o&din/ Qes. ;. !atio Erever, 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 that the donee of the power would ever direct that the residue .e given to him. !hat, however, is not a complete answer. !here is e"ually nothing in her language that indicates that she would have any o.>ection to his direction that he .e given the residue. =er words show that she intended an unfettered discretion, a discretion X that an a.solute owner would have.3 Poitras5 ct upheld power of appointment .ased on #-,-(-) arguments against general power5 a.dication of will making 9 infringes prin. of certainty in .enef. (Brodie) counter-argum.5 trust device (!ucker5 trust does not e ist for nothing, it adds to rules on gifts) 9 not modality of gift or will criti"ue of Brodie5 ! has disposed, i.e., not a.dication, .ut divesting from moment of trustee@s acceptance Rsee handoutS Poitras was a case where the su.sidiary scheme was an accretion to all the grandchildren and the court treated it as a valid and reflecting the intention to treat the grandchildren e"ually. #-,#-3 TOPIC 11 P !POSE T! STS #-:)ff &ll trusts are appropriated to a particular purpose. =owever, what is usually meant here is the private trust and the social trust (not a personal trust). !hese .ring us up to speed with the charita.le purpose trust in the common law * the social trust is even .roader. !hese open up the possi.ilities of .e"uests for the pu.lic 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 esta.lished (i) .y social trust or (ii) corporate or statutory foundation (e.g. /art 666 of the Quebec )ompanies Act for non-profit corporations) 2Ooundation3 is something of an am.iguous 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. Bnder the CCAC a foundation could .e created .y a trust, a transfer to an e ecutor with a direction to the e ecutor to carry out charita.le purposes, or .y legacy with a charge to carry out certain charita.le purposes. Bnder the CCQ, we still have the trust .y gift or will (art. #-:,) and the a.ility to charge a legatee (art. ''#+). =owever, we have lost the transfer to the e ecutor. !here is however an 2ideological3 gain since much .roader purposes are conceived under art. #-'( (general interests such as cultural, educational, philanthropic, religious or scientific purposes) than were recogni;ed under the old law art. ,)$ 2charita.le and other lawful purposes.3 Bnder 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 (/astings and .leur&) would now .e valid social trusts. Bnder the CCQ5 &rt. #-)- says that trusts can .e made in a wide variety of ways. =owever, art. #-:, specifically says that a foundation esta.lished .y way of a social trust must .e esta.lished .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 profit or 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 li.erally and in light of social utility.

!here is no pu.lic .ody designated for supervision or enforcement (as envisioned in arts. #-,, and #-,$). <o supervision would fall to the settlor and his heirs. !he court could also take on a supervisory0enforcement role (art. 3# CC/). !here will .e some imposition or regulation under the Income Ta0 Act * so much W must go outside the organi;ation etc for it to keep its status as a foundation. =astings v. 1ac4augton (#$#'), :# C< #'%

1. 5acts leaves testament with clause which leaves the remainder of his estate to some deserving charity to .e selected .y the e ecutor. 1. Issues 6s this null .ecause it is too vague+ 3. .o&din/ Qes. ;. !atio 1aclennan, N. 2Xthe clause in the will of said testator .e"ueathing the remainder of his estate to some deserving charity, the selection of which is left to his e ecutor, does not clearly show who are the persons whom the testator intended to .enefit, and is too vague and uncertain to have any definite meaning attached to it and is not suscepti.le to e ecution.3 2Xa will should dispose of the property .e"ueathed in such a manner that the testamentary e ecutor can .e compelled to carry out the provisions of the will, if he refuses to do so voluntarily, X in the present case the testator has not .e"ueathed the residue of his estate to any person or persons who are entitled to claim the same, X the X residue .elongs in law to the legal heirs of the X testator.3 =e goes on to find the clause null and void. 7alois v. de Boucherville, R#$-$S <CK -3% 1. 5acts dies without issue leaving an estate worth circa W#1. /art of the estate is .e"ueathed to mem.ers of her father@s family and the residue to .e li"uidated .y her two testamentary e ecutors and handed over to the , whom she names as fiduciary legatee, for the purpose of distri.uting as he may deem advisa.le, for charita.le work, to alleviate the sufferings of humanity and to educate young people in straitened circumstances. &lso, the does not have to make and accounting for the money distri.uted. 1. Issues 6s the second clause in the will null for .eing too vague+ 3. .o&din/ 4o, they are valid. ;. !atio Kinfret, N. finds that charita.le .e"uests should not .e set side for uncertainty. /rovided it is possi.le to carry out the intention. Oleury v. !rust GInIral du Canada (#$,(), $ 8!K -%: 1. 5acts leaves a usufruct of his estate to his sisters and following their deaths to .e distri.uted for charita.le works. =owever, there was no mention in the will of who should determine the charita.le works for which it was to .e distri.uted. 1. Issues 6s the clause in respect to the charita.le works void for uncertainty+ 3. .o&din/ Qes. ;. !atio AegacI, N. & testator may name legatees who are merely fiduciaries or simple trustees for charita.le or other lawful purposes or he may deliver the property to his testamentary e ecutors (and e tend their powers so they can distri.ute the property) or .y means of charges imposed on his heirs or legatees. =e did none of these and as a result there was no mechanism to determine the charity which should take under the will, and the gift failed for uncertainty. Couture v. Koy, C< #$$: (Bnreported) 1. 5acts leaves testament with a clause to the effect that #(U of the residue of the estate should .e distri.uted to charities. 1. Issues 6s the clause valid+ 3. .o&din/ Qes. ;. !atio Goodwin, N. finds that the court in such cases has to support the true intention of the and therefore the clause is valid and the e ecutors have to find a charity to donate the money to. TOPIC 11 $A!IATION AND 6INDING- P O5 T! STS !his .ecame a .ig issue in the early #$$(s .ecause many of the trusts created in the #$'(s were coming to the -# year deemed disposition rule.

Bnder the CCAC, it was e tremely 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 & or .y transporting the trust to another >urisdiction with friendlier variation of trust provisions e.g. &l.erta. !he CCQ provides for more intervention in arts. #-$3 et se". &rt #-$3 allows for the increase of the trust patrimony .y transferring property to it .y a person who is not the settlor (e.g. where a trust is set up for minor children, a parent may for ta reasons get someone else to set it up and then make contri.utions to it over time). !his is not really a variation issue. &rt. #-$% 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 unforseea.le which have make pursuit of the purpose of the trust impossi.le or too onerous. !he person who applies may have a moral, material or administrative interest. 6mpossi.le here is assimilated into the concept of pu.lic order with the e ception of things like insufficient trust property. &rt #-$% also allows in the case of a social trust it may su.stitute another closely related purpose for the original purpose. !his is a new thing * the cy-prIs doctrine. &rt. #-$' says that where there is no .eneficiary, property in a terminated trust devolves to the settlor or his heirs. Dhen property is given outright to an institution and the .eneficiary disappears .efore the settlor@s death there is lapse (art. ':() and if it disappears after the settlor@s death it is in that organi;ation@s patrimony. Dhen property is given to a trustee control for a purpose the closely related doctrine will apply e.g. give the W to the <pruce Bud Dorm Kelief fund if the Futch 8lm Kelief Ound is now defunct. 6f the property is given in trust for a purpose and the type of institution is named .ut the institution never e isted or ceased to e ist, then the doctrine may apply. =owever, if the property is given in trust for a specific named .eneficiary who never e isted (eg. 1ontreal /u.lic Ai.rary in '&man) or ceased to e ist, it may not apply. &rt #-$%(-) says that where the trust continues to meet the intent of the settlor .ut new measures would make compliance with it more effective the court may amend the trust. =ence the court has a duty to investigate this and take the lesser of the two e tremes if possi.le. &rt. #-$: does not re"uire the consent of all interested parties * >ust notice. =owever, an application accompanied .y the consent of settlor or his heirs, trustee, .eneficiaries and li"uidator will rarely .e refused. & trust can also terminate in a more normal way * art. #-$) sets out renunciation or lapse of the right of all .eneficiaries, e piry of the term or the fulfillment of a condition, attainment of the purpose of the trust or the impossi.ility of attaining it confirmed .y the court. De might also add e haustion of the trust property.

Stevenson is a case where the new #-$% power was applied and the court seemed to fail at it. !his was a case of a personal spousal trust where the settlor named his wife as an income .eneficiary for her life and then his son was to .e V capital .eneficiary at her death and his daughter was to .e a life income .eneficiary with the other V of the property with the capital going to the heir of her choice. 6f she failed to e ercise her power of appointment, then her children or grandchildren would get the capital at her death. !he son and daughter were the trustees along with 4ational !rust. !hey wanted to wind up the trust and applied for a >udgement to do that (daughter would renounce her income interest in order to accelerate the capital interest of her children). 4ational !rust were trying to protect the settlor@s intention and pleaded with the court to take on a supervisory role in that regard given the a.sence of a pu.lic .ody to do so (who for instance was looking out for the interests of future .eneficiaries like the grandchildren if the children predecease the daughter+). =owever, the court allowed the renunciation and acceleration.
6n the co++on &a>, there is an emphasis on the intention of the settlor * here that the date of distri.ution .e the daughter@s death. <uch an emphasis is also there in art. #-$%. But the court focused on the .eneficiary@s wishes rather than the settlor@s. 6t also ignored the art. #-': idea that if .enficiaries are trustees they must act >ointly with a third party. 6t treated this as a family affair. 6t also re>ected the common law Sanders v. 1autier idea that the court should look out for future .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 the distri.ution date * "aril said that this re"uires the articulation of e press intention. !he court did not e amine the possi.ility of varying rather than terminating the trust. Oavouring acceleration would seem to .e .ased on the idea that this promotes economic efficiency, development, is antifeudal etc. <tevenson M <tevenson v. 4ational !rust, N8 $:-',( 1. 5acts By notarial will creates two trusts, one for son and one for daughter. !he daughter@s trust is somewhat different from the sons, and on reaching ma>ority she is entitled to the revenues .ut not the capital amount, which she can leave to her children in her last will and testament, etc.. Faughter is financially independent and does not re"uire the trust to survive. 1. Issues Can the daughter renounce her rights in the trust thus allowing the capital sum to .e passed to the children immediately+ 3. .o&din/ Qes. ;. !atio !ellier, NC<. !he first o.ligation of the court is to determine the true intention of the . 6t is evident that the wished to provide financial security for the daughter. & large portion of the trust was taken up paying ta es and administration fees, therefore the true .eneficiaries are the government and the trust company with the daughter and her children receiving only a small part of the revenues. =e goes on to say that the trust is onerous and that had the known that his daughter would .e financially independent and the socio-economic conditions prevalent in #$$: he would likely have structured the trust in the same manner as that of the son.

/ringle v. &nderson (#$#%), %) <C $' 1. 5acts .e"ueaths two properties to 2the trustees of the Building Ound3 of a certain church. !he .uilding fund no longer e ists at the time of @s death. 1. Issues 6s the legacy valid+ 3. .o&din/ Qes. ;. !atio &rchi.ald, N. 2Xthere can .e no dou.t that a .e"uest to the congregation of an organised Christian .ody is a charita.le "uest and is to have that favoura.le interpretation which .elongs to that class of .e"uests.3 =e goes on to find that, although the fund was e plicitly named, the intention of the was to .e"ueath the property to the church to .e used in .uilding protects as they saw fit. 4ational !rust v. 4orthside Bnited Church (#$$%), : 8!K (-d) #$3 1. 5acts leaves a legacy to 2!he 6nstitute for Crippled Children3, and organisation which does not e ist. 3 charities involved in this area vie for the legacy. 1. Issues Dho is entitled to the legacy+ 3. .o&din/ <ee .elow. ;. !atio Fonelly, N. looks at the will all together, which had divided the @s estate amongst a of charities and churches, and sees that all the donations were given to organisations within the local area. &s only one of the charities vying for the legacy for crippled children had engaged in fund raising activities in the area, the court decides that the intended the legacy to go to them. 2Given that factual .ackground, the testator@s clear intention was to .enefit the Cntario <ociety for Crippled Children. 1isdescription, so commonplace in his will, will not defeat that intent. !he Court@s responsi.ility is to give effect to the intention of the testator.3 Succession de %ar+et 82.1BC9 Claim that trust is too onerous. Court said that a trust can .e terminated when it .ecomes too onerous. =owever, the trust can also .e modified (a.#-$%). 6nthis case, the trust has not lost its purpose, that is, to .enefit the .eneficiaries. 6n this case, ending the trust would not give the grand-children too much more. =owever, it is possi.le to change the trustee and reduce the cost. !his is to .e done. #-$3-, TOPIC 13 CONSE0 ENCE O5 5AIL !E O5 NA%ED "ENE5ICIA!:* LEGAL DE$OL TION PON INTESTAC: a.):3, ))%-),3 ))(ff '%$ for testamentary successions * does not apply to pre #$$% wills (a.%#) )')-fente 2cy-prJs3 doctrine L stay as close to settlor@s intent as poss. !a.le of 6ntestate <haring (p.3#%) !he suppletive rules on intestacy apply when there is a failure of a determina.le .eneficiary in a will, trust or su.stitution. 6t is .ased on presumed intentions * the family (surviving spouse and relatives * art. ):3) <pouses must .e married. Kelationship is .ased on .lood (legitimate or illegitimate) or adoption (art. ):: * adoption specifically at art. :''(#)). Fegree of relationship is esta.lished .y the of generations, each forming one degree. !he series of degrees forms the direct line or the collateral line. &rt ):). !he Firect line can .e ascending or descending (arts ):' and ):,) * persons descending one from another calculated .y the of generations .etween the successor and the deceased. !he Collateral line is the series of degrees .etween persons descended not one from another .ut from a common ancestor calculated .y the of generations .etween the successor and the common ancestor and the common ancestor and the deceased (art. ):$).

[!he general rule in this area is that unless there is representation the descendant in the closest degree takes the share of the descendants to the e clusion of all the others (art. ))$). Oirst Crder5 (<urviving spouse and descendants * arts ))) to ))$) &rt. ))) * where there is a spouse and descendants, the spouse takes #03 and the descendants -03.

&rt. ))' * where there is no spouse the entire succession devolves to the descendants. <econd Crder5 (<urviving spouse, privileged ascendants and privileged collaterals * arts )'( to )':) 6f is a spouse and no descendants then the spouse competes with privileged ascendants (mother and father of the deceased) and privileged collaterals (.rother and sisters of the deceased and their first degree). &rt. )'# * when there are no descendants, privileged ascendants or privileged collaterals the entire succession devolves to the surviving spouse. 6f there are privileged ascendants then #03 goes to them and -03 to the surviving spouse (art. )'-). 6f there are no privileged ascendants then that #03 goes to the privileged collaterals (art. )'3). &rt. )'% * where there is no spouse and no descendants, the estate is divided .etween privileged ascendants and privileged collaterals (if there are none of one all goes to the other). !hird Crder5 (Crdinary ascendants and collaterals * arts ))) to ),3) &rt. )'' * where there is no spouse, no descendants, no privileged ascendants or collaterals then the ordinary ascendants and collaterals are called to the sucession. !his goes up to the , th degree (art ),3). 6f there is no one the state takes (art ):3 and )$)). De might notice here the preference for the direct line descending over the direct line ascending. &lso note that persons within one order are co-heirs and are called .efore those in the ne t order. /ersons called (who have a 2vocation3) are those .elonging to the order of person closest to F .y relationship. !e2resentation &n heir may come to a succession in his own right (de son propre chef) or .y representation. &rt. )), says that if the descendants who inherit are all in the same degree and are called in their own right, they share in e"ual portions or .y heads. But if there is representation they share .y roots. &rt. ))( defines representation as a favour granted .y law .y which a relative is called to a succession which his ascendant who is a closer relative to the deceased would have taken .ut is una.le to .y virtue of (i) simultaneous death with the deceased, (ii) predeceasing the deceased, or (iii) unworthiness. 6t is a derogation to the principle that the heirs nearer in degree e clude the more remote (art. ))$). 6t used to .e called a 2fiction3 rather than a favour (art. )#$ CCAC) .ased on presumed intention. /lace the representative in the same position as the represented person i.e. the dead or unworthy person. 4o limit in the direct line (art. ))#), does not take place in the ascending line (art. ))- * used to .e allowed in the CCAC) (this means that a father can never represent his son) and is limited in the collateral line (art. ))3). & person who has renounced a succession may not .e represented (art. ))%) * if someone has renounced he renounces for himself and his heirs. &rt. )): * in all cases where representation is permitted, partition is effected .y roots. 6f one root has several .ranches, the su.division is also made .y roots in each .ranch, and the mem.ers of the same .ranch share among themselves .y heads (i.e. within a root sharing may .e .y .ranches and within a .ranch .y heads). F & B C F 6f & predeceases F, there are several options5 (i) all goes to B as the closest? (ii) give B, C, and F #03 each? [(iii) can divide .y root (per stirpes or par souche) V to & and V to B and then \ each to C and F as &@s representatives. !his means that only &@s V will .e divided .y heads BV

F &V C\ F\ 8 #0, O #0,

Cld Code04ew Code 6ssue * Kepresentation in a Dill Bnder the CCAC, representation was confined to an intestacy situation (unless e pressly provided for in a will). 4ow, under the CCQ, if the circumstances are right, representation must .e e cluded e pressly or .y implication * art. '%$. !he conditions include that the legacy is made to all the descendants and collaterals who would have .een called in an intestate situation. Kepresentation will operate as it does under an intestacy unless it is e cluded .y the testator e pressly or .y the effect of the dispositions of the will. !here will .e no representation for legacies .y particular titles unless the testator has so provided. !his amounts to five conditions5 (i) the legacy is made to a descendant, privileged collateral or an ordinary collateral descended from a privileged collateral? (ii) the legacy .enefits all the mem.ers of one of these groups? (iii) this is the group that would have .een called if the testator had died without a will? (iv) the legacy is of universal or general title? and (v) representation was not e cluded .y the testator. &rt. %# of the Transitional Rules says that representation takes place only to the e tent provided .y the legislation in force on the day the will is made. #$$( Dill F (#$$:) 2 #$$: Dill 2 6ntestacy #$$3 #$$:

& C

& predeceases F. B takes all (no representation for pre-#$$% wills unless e pressly provided)

C takes &@s V .y representation (given art. '%$ conditions)

Kepresentation for .oth

(4ote5 arts. $'$ and $,( CCAC admit representation insofar as 2family3 is used for children and grandchildren in an un"ualified sense i.e. no 2first degree.3 Can have representation in a pre #$$% will that way * 2children3 and 2grandchildren3 is taken to mean all descendants). I$. 5or+a&is+* 5or+s and 5or+a&ities

TOPIC 1; 5O!%S O5 OSTENSI"LE GI5TS #) 4otarial Gift rule contained in #,-% comes from trad. of 2rIserve3 9 2lIgitime3, reasons mentioned .y !errI M Ae"uette (p. #)- cs.k)5 give pause to donor, keep prop. in fam. patrim., guarantee irrevoca.ility (protects .oth donor 9 donee) (cf. 1alartre) return has .een a.olished (unless specified in will)5 cf. Charle.ois (+) - elements in every gift5 (#) animus donandi (intention to give), (-) material elements (differ according to form5 en minute for 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 pu.lication re"uired to enforce gift, make opposa.le 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 (in general, foundation L created .y gift .y notarial deed e su.>ect to pu.licity? poss. to set up trust .y don manuel, .ut not practical)? also, if immov., -$3, re"uires pu.lication #-$-5 3rd party cred. must show fraud in case of trust that did not re"uire pu.lication -) Fon manuel #,-%(-)5 like notarial gift, E .0w donor 9 donee, .ut w0 immed. delivery 9 possession only possi.le for mov. prop. (Benett resolved controversy under CCAC5 only for 2choses mo..3) !errI M Ae"uette (p.3#)) <ee p.%$ <B11 1eighen M Kedford, R#$'-S C< #-# 1. 5acts owns a of paintings which are worth a lot of WWW. writes to insurance and ask them to insure one of the paintings in the name of her granddaughter as she had given it to her as a gift. !he painting remains in the @s house. !he insurance is paid for several years .ut eventually lapses. 4o deed is registered in respect to the gift. Granddaughter dies .efore . 1. Issues Das the gift valid+ 3. .o&din/ 4o, as it did not fit into one of the prescri.ed forms. ;. !atio BIlanger, N. 2!he issue of insurance policies for three years in favour of her grandchildren confirms her intention that the latter should get indemnity if and when a loss occurred? it confirms her consent to the gift .ut it contri.utes nothing to the proof on delivery.3 2Xthe gift X is null unless it falls within the four corners of a contract called don manuel. But delivery is an essential element of the contract itself of don manuel2 it is not only an o.ligation resulting from such contract. 6n other words, there is no don manuel if delivery does not accompany the consent.3 =e goes on to find that there was no valid gift. Feeds containing gifts 67 must .e, under pain of nullity, e ecuted in notarial form? the only e ception to this rule 6f the gift of 1ova.le property is accompanied .y delivery. &ll gifts 67 of 1 or 61 property must .e registered, .ut gifts of movea.les are e empt from registration when they are followed .y actual delivery and pu.lic possession .y the donee. Felivery is an essential element of the contract itself of don manuel? it is not only an o.ligation resulting from such contract. !here is no don manuel if delivery does not accompany the consent. ct agreed that letter showed intention to give, .ut form of gift failed .oth as notarial gift (no notarial deed) and as don manuel (no immed. deliv. 9 poss.5painting never left !@s home) e not valid gift

Boucher v. <t-Germain (#$33), :% BK ::: 1. 5acts

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. 1. Issues Foes the note amount to a don manuel, therefore circumventing the formal re"uirements of an inter vivos gift+ 3. .o&din/ 4o. ;. !atio Ae!ourneau, N. finds it cannot .e a don manuel as the writing itself does not amount to more than a promise and therefore lacks the re"uired form. 6CB note failed as gift5 no notarial deed, only promise, i.e., no immed. delivery also failed as 2promisory note35 see Bills of 8 change &ct 1alarte v. Fecary (#$3-), '( C< '% 1. 5acts , during the last days of a mortal illness, gives a check for W#(( and .lank che"ue in an envelope on which is written instructions to cash the check if the dies and deliver the .lank check to his sister. dies. 1. Issues Das the W#(( check a don manuel+ 3. .o&din/ 4o. ;. !atio &rcham.ault, N. finds that the essential characteristic of a don manuel is that the donor vests himself of the gift. !he don manuel has to satisfy the re"uirements of a gift inter vivos and is not allowed to violate any of its fundamental rules. =e goes on to find that it was a gift mortis causa and therefore not valid. che"ue is not don manuel .0c no immed. divesting .y donor, not irreovac.le (deceased could have revoked .y putting stop payment up until moment of her death) even if deceased had not specifically told / to wait until after her death, still would not "ualify as don imanuel (no immed. divesting, not irrevov.) Best to give certified che"ue 4ote5 Bills of 8 change &ct prevents .ank from casing che"ue after death of owner of account under '#% CCQ, this che"ue might have .een saved (as holo. will+ dou.tful)5 cf. Bertrand v. 1atias <parling, Navelin v. Canada /ermanent !rust, R#$,)S KNQ %') 1. 5acts <, hiding from the government in /anama, is .eing sued .y F for alimony arising from an annulled marriage and gives her a settlement for W#-:k. &t the same time he also says he will provide her with circa ::k shares in N, a company he owns, .ut he cannot give her the shares right away as the government has sei;ed them to force him to pay income ta owed. 1. Issues Das the transaction for the shares a gift or in settlement+ 3. .o&din/ Gift, and therefore void. ;. !atio Gomery, N. 26t is settled law that shares of the capital stock of an incorporated company may not .e transferred .y gratuitous title unless the transfer is made .y way of notarial deed.3 =e goes on to find that .ased on the various writings it was intended that the transfer of the shares should .e .y gratuitous title. Given that it was not in notarial form, etc. it was not valid. 4ote that he speculates on whether the transfer of the shares certificates duly endorsed would have .een a don manuel (this is enough for the federal law). C< Bonds (capital) cannot .e gifted .y don manuel, .ut coupon for value o interest only can car can .e gifted .y don manuel if all appurtennt docs passed from donor to donee (insur., regis....) TOPIC 1A INDI!ECT AND DISG ISED GI5TS Indirect and Dis/uised Gi#ts5 <61BA&!6C45 the real hides .ehind the actual0apparent act #%:#5 when parties agree to e press intent .ut not through E, rather, through CCB4!8K A8!!8K< #%:-5 !/ in good faith can avail self of apparent E or counter letter disguised gifts5 intentions deli.erately hidden K8181B8K5 simulation not against pu.lic order? su.stitute formalism Indirect gifts5 tacit or implicit? no indication if cause is onerous or gratuitous 8g5 .enficiary in insurance policy? stipulation pour autrui? no consideration for .enefit? impoverishment and enrichment 66.-# #,##5 indirect and disguised gifts only must conform to the instrument .y which they are constituted 5or+a&ities #or Gi#ts5 #) make donor pause? -) succession duties or gift ta ? 3) protection of family patrimony Kules on return5 under CCQ must .e 8]/A6C6! (opposite in CCAC)5 give .ack to succession all that received <ee chart to unpack #,-% 4otarial form5 protection of consent? pu.lication0registration L opposa.ility (protects !/s from creditors)

66.-(B !rusts (as gifts+)

#-:,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 immovea.les must .e registered -$3, para. -5 movea.les L registration to e tent re"uired .y law #-$-5 no re"uirement of registration means creditor can challenge on .asis of fraud #,-%5 notarial form5 intervivos trust when registered .ecomes opposa.le don manuel5 #) movea.le? -) delivery? 3) immediate possession 66.-(C -3Meara suscepti.le on delivery Meighen5 failed due to lack of delivery? donor must .e deprived of o.>ect "oucher5 promissory note5 failed as only a promise? no delivery, BB! could have .een saved if in notarial form +ecar&5 check in sealed envelope? no immediate divesting and don manuel must .e irrevoca.le and until she died could have .een revoked? !* if using a check make it certified 66.-(F Sparling5 the "uestion of shares? shares traded on e change can .e transferred if endorse certificates? shares of private corporations are pro.lematic so always use a notarial deed <avings .onds5 cannot .e don manuel as need KBC to change? coupons are ok K8181B8K5 presence of any additional re"uirements will make don manuel impossi.le &ny negotia.le instrument is ok 1ust endorse shares

unlike wills, which can .e valid w0out e pressly saying what they are so long as pro.ated, ostensi.le gift must comply w0 formality rules however, disguised gift can .e valid act, e.g., apparent sale under #'(,, .ut actually true intention of li.erality deli.erately hidden e simulation (#%:#), not against pu.lic order, rather 2su.stitute formalism3 indirect gift L neutral act, no indication of whether cause L onerous or grat., e.g., designation of .enef. in insurance E, annuity, KK</ (2stipulation pour autrui3) #,##5 indir. 9 disguised gifts need not respect rules of form (#,-%), namely notarial deed 9 registration or immed. delivery 9 possession, yet othe rules apply5 irreovaca.ility, capacity of donor0donee, re"@t of impoverishment 9 enrichment, animus donandi, prohi.ition of illicit E0causes furthermore, #,## implicitly makes rules of form of instrument used apply, e.g., disguised gift immov. through sale would re"uire notarial form 9 pu.lic. since sale of immov. re"uires this (#%::, -$3,)

Charle.ois v. Charle.ois, R#$'%S C& $$ 1. 5acts , years prior to his death sells K his farm for much less than it was worth. K argued that although he got a good price for the farm, he provided the with various services. 1. Issues Das the sale actually in part a gift, therefore re"uiring a specific form+ 3. .o&din/ Qes. ;. !atio Gagnon, N. finds that the property sold was worth much more than the price which the had received and the transaction gave the purchaser a considera.le advantage. 6n respect to the services he says the evidence was not enough to allow them to .e evaluated to the point that they could change the gift like character of the agreement. =e goes on to says that the sale was less than someone who was interested in getting a reasona.le price would have accepted. =e goes on to find the difference .etween these prices was a gift and therefore re"uired the notarial form. disguised gift used to circumvent rules on return =s claimed that farm land was sold for value inferior to fair market value e as disguised gift, it would have to .e returned to estate for distri.ution among =s siince purchaser was himself successor who had accepted legacy, thus .ecoming = himself (4ote5 ,)' CCQ only re"uires this if ! specifies so in will) ct relies less on su.>ective factors (e.g., uncompensated contri.utions .y Kacicot (con-in-law), emphasi;es o.>ective, mkt evidence, e.g., fact that no stranger could have o.tained land at such low price e it was disguised gift, thus had to .e returned illustrates 2claw-.ack3 of li.eralities to protect rights of successors TOPIC 1) 5O!%S O5 6ILLS Generally on Dills5 &rt. '(% Bnilateral >uridical act * personal and individual? solemn .ecause confidential Kevoca.le * art. '() cannot a.dicate the right to make a will or revoke it (though may stipulate that a gift 1C in a marriage contract is irrevoca.le art. #,%#) 4o >oint wills * art. '(%(-) Fisposal .y gratuitous title * this does not include charges or onerous conditions e.g. take the house with its mortgage Dhat if there is no disposal of property in a will+ &rt. '(: says that it is a will even if contains only provisions regarding the li"uidation of the succession, a revocation of a previous will or the e clusion of an heir. (& renunciation as to legacies may still .e valid as an appointment of a li"uidator .ut this does not cause the previous will to revive3)

Oormalistic (depending on type) 8ffect on death * .efore death a legatee has no transmissi.le right? a will is to .e taken as the e pression of the person@s last intentions hence intention is important in the production of its effects !here are no special phrases for e pressing the last intentions. Dhat counts is 2the words used, the com.ination of these words, .e intelligi.le and that they e press the testator@s intention.3 Ke"uirement is that it .e clear and intelligi.le, clear that it is to take effect on death and is an e pression of last intention. !his is a rule of interpretation which should guide us in understanding and implementing the testator@s wishes, especially in cases where the will is drawn up without legal counsel. &rt 3#($ casts a wide net for wills drafted outside of i.e. the form prescri.ed .y the law or nationality of the testator 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) (ii) (iii) (iv) Aack of due e ecution (formalistic deficiency) Aack of testamentary capacity !he e ercise of undue influence .y someone over the testator <pecifically, (ii) and (iii) may amount to lack of knowledge and approval .y the testator of the contents of the will.

/reventative 1easures 6nclude5 Aooking out for 2vulnera.le situations3 e.g. where there is an elderly testator, a testator who is in significant ill health (on medication0psychiatric or mental pro.lems), if a testator has provided an incomplete picture of who is in the family or full information regarding assets and lia.ilities (hidden ta lia.ilities or offshore assets), if the disposition of property is unusual, if a .eneficiary has .een overly involved in the preparation of a will, where dispositions depart drastically from a former will with no apparent >ustification like divorce or separation. Aine of defences include things like make sure there is no pro.lem of form, read the draft to the testator or send a draft, e ecute and discuss the will in the a.sence of all persons who have a .eneficial interest (e cept hus.ands and wives), keep notes, o.tain a letter of opinion from a physician regarding the testator@s capacity, $ insert a statement in the will a.out why the testator has disposed of property in a particular way if the disposition is unusual or a drastic change from a previous will e.g. favouring one child or leaving an K</ to someone other than a spouse or saying that he was aware of the ta conse"uences.

&rt. '#- sets out the notarial will, the holograph will and the witness will as the only forms of will that may .e made. 6. 4otarial will * &rts '#) to '-: !his is the most formalistic and regulated of the forms of wills !he notary@s impartiality is protected .y rules like s. 3- 4A which precludes the notary making acts for spouses, art. '-3 the notary cannot .e related to the testator, art '-% if the notary is acting as the li"uidator it must .e gratuitously. &rt '#) says that a notarial will is made .efore a notary en minute in the presence of a witness (or in certain cases two) and the date and place of the making of the will shall .e recorded on it (1/K says the date at the .eginning and the place at the end). &rt '-: says that a witness must .e named and designated in the will and that anyone of full age may .e a witness (e cept an employee of the attesting notary i.e. notary@s secretary * though spouse of the notary is okay #(). 1/K says that though it is not e plicitly stated, a witness must have physical capacity to 2hear3 the e pression of the last will and 2see3 the person making the will. &rt. '#' says that the notarial will is read to the testator (and if the testator wishes in the presence of the witness). Cnce the reading is done, the testator declares in the presence of the witness that the act contains the e pression of his last wishes. &fter .eing read, the will is signed .y the testator, the witness or witnesses and the notary in each other@s presence. &rt. '#, says that it that the formalities governing notarial wills are presumed to have .een o.served (1/K adds that the minute Y must .e mentioned). &rts. '#$, '-( and '-# re"uire - witnesses for persons with disa.ilities (testator who cannot sign, testator who is .lind and testator who is deaf or deaf-mute) with mandatory reading of the will to the testator in the presence of the witnesses e.g. for a .lind testator. !he advantages of a notarial will include factors like5 it is not su.>ect to pro.ate (has the evidentiary weight of an authentic document), the original remains in the 4otary@s greffe and since #$)# a central registry for wills at the des notaries making it tracea.le and immune from tampering (unlike witness will and holograph wills) as well as confidential (contents comunicated to the li"uidator). & notarial will is not immune from challenge * if the name of the testator is wrong, the date is wrong, place is wrong etc. &rt. -,-# says that impro.ation is necessary to contradict facts in the recital that the pu.lic officer had the task of o.serving * use impro.ation at art. --3 CC/. 6f want to challenge on other grounds (fraud, fear, duress, "uality of consent) do not need to impro.ate. &rt. -,#' * copies are okay

66. =olograph will * &rt. '-) says that a holograph will must .e written entirely .y the testator and signed .y him without the use of mechanical process. 6t is su.>ect to no other formal re"uirement.

1ictor Smith v. Penn& +avie +unlop is a recent #$$' case where a well-documented and current medical dossier was a.le to defend an attack on a notarial will .ased on the testator@s alleged incapacity. #( !he prohi.ition on the employee of the notary does not transpose into the realm of witness wills and the employee of the lawyer.

2Dith his own hand3 has .een deleted * handicapped people who can sign with their feet or mouth. &.sence of signature is not necessarily fatal (see Morin c Morin and Robitaille c. Gagnon .elow) nor is the presence of a mechanical process (computer in Succession de Riou0 .elow) !he signature must .e identifying and legi.le !he signature should .e at the end of the document (approval .y the testator of preceeding te t) .ut courts have .een li.eral a.out this and said that there is 2no sacramental place3 for the position of the signature ( Success de Sumaga&sa&). <ignatures of other witnesses are not re"uired. 6f the will is written .y someone helping .y holding the testator@s hand that might .e okay.

Danserea$ ,. Ber,et 81<A1 SCC9 O&C!<5 & letter in which the testator says he gives all he has to the addressee (his niece) was re>ected as a will in favour of an earlier will designating a different heir. 6<<B85 6s the letter a valid holograph will+ =8AF5 Qes K&!6C5 !he letter conveys a clear intention to will to the niece. !he words clearly make her the universal legatee. 6t is a complete testamentary disposition. 2!here has long .een no dou.t that a letter may constitute a valid holograph will, which of course is not su.>ect to formalities. /rovided a document is wholly written and signed .y the testator, contains a disposition of property not .eing a mere recommendation, shows its author@s intention to make a will and is not merely a draft, it is a genuine will.3 <.C.C. held that 2lettre missive3 was valid holo. will since it was (#) written .y !, (-) signed .y !, (3) indictaed intention to dispose of prop. upon death (present art. '(%) affirms that there is no sacrosanct language re"uired for (holo.) will &olinari ,. -infre. 81<)1 SCC9 O&C!<5 !he deceased went to a trust company to make a new will (replacing his sister as universal legatee) and the officer told him to return home and write a letter naming legatees, amounts etc. !he deceased wrote the letter, .ut it was found in his home at the time of his death. 6<<B85 6s the letter a valid holograph will+ =8AF5 4o K&!6C5 !he letter did not contain an actual disposition of property (i.e. no animus testandi). 6t was merely the instructions for the preparation of a will to .e made and signed at a later date. 6t was not definite or concreti;ed (listing names and amounts too vague). .urden of proof on propounder to prove valid holo. will (she did not discharge .urden in this case) (a'/$es ,. 0llain1Ro2itaille 81<CB SC9 O&C!<5 =ere we have a letter which is signed .y the testator .ut which is type-written. 6<<B85 Can a type-written letter .e a valid holograph will+ =8AF5 4o K&!6C5 &rt. ,:( CCAC says that holograph wills must .e wholly written and signed .y the testator. letter did not "ulaify as holo. will .0c was typed, nor did it "ulaif as witness will today it might have .een saved under '#%, given recent >uris. III. 6itness 6i&& Aike a holograph will there is no need for the date or place where it is signed. &rt. '-' says that it may .e written .y the testator or a third party (i.e. a lawyer .ut not necessarily). 6ts crucial feature is that it is made in the presence of witnesses * -. !his article says that the testator must declare in the presence of - witnesses that this is his will (though he need not divulge its contents), he signs it (or confirms his signature) and the witnesses sign in his presence. & legacy made to a witness is null .ut that does not effect the other dispositions of the will (art. ')(). Ke"uirements for witnesses are the same as for notarial wills (e cept the employee prohi.ition) 6f it is written .y a third party or with mechanical means, the testator and witnesses must initial each page that does not .ear their signature (art. '-,). &rts. '-$ and '3( are for persons una.le to read or una.le to speak. &rt. '-' makes for the possi.ility that a third person can sign for the testator. !his form of will is su.>ect to pro.ate (as is a holograph will). !here is, however, a central registry since #$'$ for these types of wills (not the originals which are kept .y the lawyer or the testator .ut filled out forms). !his can help with tracing. 6t does not have the evidentiary weight of a notarial will (an authentic document) as a private writing (art. -,-)). 6f there is a form pro.lem here (e.g. only # witness) this can .e .umped down to a holograph will if it is hand-written and signed. &rt. '#%5 &rt. '#3 states the general rule that if a formality of a will is not o.served it is null (unless it can .e .umped into another form and .e valid there). =owever, art. '#% says that for a holograh or a witness will that does not meet all the re"uirements of form, it may .e valid nonetheless if it meets the essential re"uirements and it contains the last wishes of the deceased. 4. Easirer has called this the 2>udicial will.3 &rt. '#% then raises the "uestion5 Dhen is an 2essential

re"uirement3 not essential such that testamentary intention can .e honoured+ 8.g. an unsigned computer disk which says 2!his is my will3 with a supporting diary entry was enough to count as a holograph will i.e. drop the handwritten re"uirement. 6s this a new standard or an anomoly+ Can an oral will .e far .ehind+ 6s this a % th form of will+ /attern in the >urisprudence of the emphasis on testamentary intention or the 2su.stance3 test5 Minville a valid holograph will even though the signature appeared at the .eginning of the document? "ertrand c. Mattia a valid witness will even though the signature was not at the .ottom of the document .ut in the .ody of the te t where one normally signs a che"ue? Pelletier c. )ot a valid witness will signed in the presence of witnesses .ut the initials were omitted? Gingras c. Ro& a valid witness will even though it was a will "uestionaire (signed .y the testator, two witness and contained the last wishes) +idone c. +idnone5Gagnon a valid witness will of an e tremely 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. Gunette c. Pomerleau a 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. Moisan c. Moisan a valid witness will even though the witnesses did not know that it was the testator@s will. Morin c. Morin a 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+upuis a 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). Mercier c. Mercier5)harron a valid holograph will even though not written in the testator@s hand (dictated to the universal legatee and signed .y testator). Riou0 a valid holograph will that was a signed and dated computer diskette along with hardcopy of print-out (the diskette was assimilated to an envelope containing a will and .earing her signature). 'essard c. 'essard a valid holograph will that was a pre-printed form with the name of the testatri and .eneficiary 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 pro.lem with a notarial will it can .e saved under art. '#3 (i.e. .ump it down into a witness will or a holograph will). &rt. '-,(-) is another e ception to formalism for notarial wills where it said that a failed notarial will will not .e precluded from .eing a valid witness will if there 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 are appraised according to the legislation in force on the day the will is made. &rt. ' says that >udicial acts which may .e anulled when the new legislation comes into force may not .e anulled thenceforth for any reason which is no longer recogni;ed under the new legislation. !he general rule is that a pro.lem 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 com.ination 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 paper under art. '#% themselves .ut content themselves with reviewing e isting .ut failed efforts .y others to dispose of property at death.3 Bnder the emphasis of formalities or 2form3 test, the idea is that formal re"uirements are themselves the .est guaranty that the intentions of the testator will .e respected (1ignault)5 Gardner c. /ubbard5Robertson an unsigned document identified as a will not recogni;ed as a valid witness will. Succession de 'avalee an unsigned handwritten not recogni;ed as a valid holograph will. Succession de "a6inet an unsigned and undated handwritten document in a sealed envelope identified as last wishes not recogni;ed as a valid will. Succession de Poulin a partly pre-printed and partly handwritten document in a envelope marked will with the testator@s signature not recogni;ed as a valid holograph will. Robitaille c. Gagnon a form will completed .y a third person, signed .y the testator and one witness not recogni;ed as a valid will. .rancoeur c. albert an illiterate testator who was not read his will, did not declare it contained his last wished in the presence of witnesses etc not a valid witness will. 'atin c. Rehel am illiterate testator dictated his will .ut the document was not read in the presence of witnesses, signed .y the two witnesses separately and not certain it contained his last wishes. 'avoie c. "oivan an invalid attempt to make a >oint will 1eilleu0c. 1eilleu0 a holograph document dated after a notarial will in which the testatri 2promises3 all her property to her daughter is not valid .ecause it lack an une"uivocal e pression of her last wishes. 'ehan c. Moufrage5 Renaud handwritten documents entitled 21y last will and testament3 were not a valid holograph will since they were in fact intended to .e a draft will for a new notarial will. Succession de "oulos is a mere letter of instruction. 1oving .eyond the % corners of the will and admitting all sorts of e traneous oral testimony turns the issue of whether or not a will is valid into a matter of who comes .efore the >udge rather than the document itself. 6t makes for an ad hoc system of >ustice and a non-uniform set of >urisprudence. Codicils (art. '3' 2testamentary dispositions3 which name heirs and give property) can .e used to make minor changes to wills (e.g. replacing the li"uidator). <aying it is making a modification, revoke the clause and su.stitute the new clause and then confirm all over again the provisions of the will. Codicils can .e used to make changes in all three forms of wills (though witness and holograph codicils will have to .e pro.ated). =owever, codicils must follow the rules of form of whatever kind of will it is. (4ote a distinction .etween a codicil and a memorandum * a personal list of items like furniture and >ewelry that the testator may have drawn up. !hese are not legally .inding .ut significant moral weight

attaches to such a list and the li"uidator will >ust e ecute. Cften a more efficient way of dealing with such matters than modifying the will all the time.)

Fansereau v. Berget, R#$:#S <CK ,-1. 5acts wants a letter written .y the to .e pro.ated. Aetter says 2Ne me suis senti trJs fatiguI derniJrement et n@ai pas eu le temps de m@occuper de ton testament. Fe toutes facons >@aimerias H te dire "ue s@il m@arrivait "uel"ue chose tout ce "ui m@appartient est H toi3. 1. Issues 6s the letter a valid will+ 3. .o&din/ Qes. ;. !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 <CK $# 1. 5acts goes to trust co and says he wants to right a new will. 6t is a greed that the will right a letter to the trust co with the names of the legatees so that the will can .e prepared .y a notary. wrote the letter stating 2X here are the names and addresses, with the amounts for my will X3. !he letter was never mailed and was found shortly after the @s death in his home. 1. Issues Das the letter a valid will+ 3. .o&din/ 4o. ;. !atio !aschereau, N. !o .e a valid holographic will, a document must .e written wholly in the hand writing of the and signed .y him, must contain an actual disposition of property rather than a mere recommendation, and must reveal an intention to make a will then and there and not in the future. 6n the present case, the letter contained no actual disposition of the property. !here was no animus testandi. 6t merely contained instructions for the preparation of a will to .e made and signed at a later date. Oauteu , N. finds that it is up to the one wishing to uphold the writing as a will that it meets the re"uirements. !he failed to do this. Nac"ues v. &llain-Ko.itaille, R#$',S - <CK ,$' 1. 5acts Aetter contains a stipulation in it which telling to make annuity payments to another 2in the event of my death3. ;. !atio /igeon, N. finds that the transaction is invalid as a gift mortis causa unless it can .e found that it is a will. =owever he goes on to find that the letter, which is type-written and signed .y the appellant, is not valid as a holographic will as it is not completely in the handwriting of the . "issonnette ,. "issonnette 82.33)9 6nvalid as Ditness will, .ut valid as holographic will. &dditions .y someone else did not modify anything essential (this is contrary to what /othier says5 one word .y someone else and it is invalid) &lso valid if changes were made prior to the testator looking at it. . To2ic 1C Probate /ro.ate is a way of .estowing on a witness or holograph will a provisional character of validity. Bnlike the common law, has always had a less solemn form of pro.ate. /ro.ate proceedings are not res (udicata. <u.stantive issues as to the "uality of consent (lack of capacity, undue influence and so forth) can .e raised later. /ro.ate does not close the door on these contestations. 6f the will is valid as to form, can have valid authentic copies made. +ugas (<CC #$-$)5 6f a will is accepted in pro.ate this does not shift the .urden of the .eneficiary having to prove its validity to the party who is claiming it is a forgery. /ro.ate is really >ust a registration of the will the goal of which is to give pu.licity to the will and to allow interested parties to get certified copies of the will. 6t cannot do something like shift the .urden of proof since the parties should .e in the same position they were in if the will had not .een registered. 6t cannot do that as preuve provisoire. 6t has .een like this since #,(# and always thought of as gracieuse ou non contentieuse (e.g. 2non-contentious matters3 at arts ,)- et se" CC/). 6n the Mc)ade case we see how narrow pro.ate proceedings are. !he testatri signed a witness will, a notarial will and then a letter to Koyal !rust revoking the notarial will. !he court will not look at all three documents and what revoked what. 6t will only look at the witness will and whether or not it satisfies its formal re"uirments.

Successions de "rien where the document .rought forward for pro.ate was contested on the ground that no property was .eing given ((e leg7re 8 part gales 8 9: % et 'orraine). =ere the will was accepted for pro.ate * even if this a good argument it must .e made in a separate proceeding on the su.stance. Dho 1ust .e <ummoned to /ro.ate /roceedings+ &rt. ,:, CCAC did not re"uire an heir to .e summoned * pro.ate was an e0 parte proceeding i.e. where only one party is heard. 6t was initiated .y motion and affidavit (see p. #,$ CB for an e.g.). 4ow, art. ''-(-) says that the known heirs and successors shall .e summoned to the pro.ate unless an e emption is granted .y the court. 2=eirs3 are confined to universal and general legatees (not particular legatees) .y virtue of art. '3$ and art. )#$ and 2successors3 are heirs mentioned in the will who have not yet accepted the succession. Poulin c. +eschamps (#$$)) & witness will naming the testator@s wife as universal legatee and son as li"uidator. <hould the : other children not mentioned in the will .e summoned+ !he >udge clearly prefers an large and li.eral interpretation of 2known successors3 that would include intestate heirs as a means of countering fraud and other a.uses in the registration of non-notarial wills. !he principle here is that everyone who has an interest in a will should .e present for the pro.ation. !here is the idea that art. ''-(-) was introduced to accord more weight to pro.ation * give it more solemnity. =owever, relying on legislative de.ates there is not the intent to change the law in this way i.e. to enlarge it this way. 4eed only summon those in the will and not the intestate heirs. .ortin was a case which says that the net should .e cast widely so that people can contest the will as early as possi.le. !alpis says that even the heirs in a revoked will should .e notified and summoned. +urand is a case which says that a >udgement in pro.ate should .e made opposa.le to as many people as possi.le, including particular legatees. /ro.ate was never meant to .e an arena for contestation on the su.stantive issues. 6t has always .een a mechanical validation of form. !o treat art. ''-(-) as casting a wide notification net fits with a common law system where pro.ate is an arena for contestation on the su.stance. <ince we can contest after pro.ate there is no .asis for the wide notification. <ee art. ,)- CC/ et se" 2non-contentious matters3 * initiated .y petition or affidavit. &rts. ,,' et se" CC/ set out the pro.ate procedure in more detail (art ,$# specifically says that any interested person who did not oppose the application for pro.ate or having opposed it raises grounds he was not then in a position to urge may contest after notwithstanding the pro.ate). &rts. ,$- set out rules for letters of verification for outside situations. !he parties are the estate and the petitioner. &ny additional universal heirs must .e notified. &rt. ''% says that a will that is not produced cannot .e pro.ated e.g. a photocopy of it. 6t must .e reconstituted .y the heirs, successors and legatees and the origin and regularity must .e conclusive and une"uivocal. &rt. '': allows for oral testimony of a will that cannot .e produced (lost, destroyed, or in the hands of a third party). Trudel was an attempt to pro.ate a photocopy of a will. !he photocopy can .e used as an element in the reconstitution. 6f there is no photocopy, can call the people who saw it, the lawyer who drew it up etc. 6f it is lost or destroyed must prove that this was not a deli.erate act of the testator. &rts '#%, '#3(-) and '-,(-) shenanigans can go on in pro.ate proceedings since they are matters of form. <uccession de Nean-1arc /oulin (p.3%%) Cnly heirs called to the succession, in accordance with a.''- and )#$. <ee <B11. Fugas v. &miot, R#$-$S <CK )(( 1. 1. 3. 5acts Issues .o&din/

;. !atio Kinfret, N. finds that in an action in contestation of a pro.ated holograph will, the .urden of proof still lies upon the .eneficiary to esta.lish the genuineness of the writing or of the signature of the . !he pro.ate does not have the effect of shifting the party repudiating the will the .urden of proving that the will or signature were forged. & >udgement ordering the pro.ate of a holograph will does not constitute res (udicata. !he main o.>ect of pro.ate is to give pu.licity to holograph wills and to those made .efore witnesses (and to allow the parties to get copies). allegations in affidavit accompanying motion for pro.ate re>ected as false .0c inconsistent w0 Fugas@ oral testimony <.C.C. rules that pro.ate does not have effect of shifting .urden of proof to heir to show that signature L authentic (etc.), .ut rather .urden remains on party repudiating will to shaw it is fraudulent (check with /iccini-Koy5 K8&AAQ 4C! CA8&K^^^) Ke 1cCa.e5 Eelly, R#$)'S BK --% 1. 1. 3. ;. 5acts Issues .o&din/ !atio

!he pro.ate 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 concern himself with other issues which may invalidate the will, for e ample whether there is another will which supersedes the one which is .efore him. Kinfret N. rules that pro.ate >udge e ceeded his >uris. .y considering validity of 3 docs5 an 28nglish form3 (witness) will, a notarial will 9 a letter e should have simply considred #st (8nglish form) will, which had .een su.mitted for pro.ate Brossard N. makes refrence to 1ignault v. 1alo, which confirmed Codifiers@ contention that pro.ate amounts to 2minor3 pro.ate of 8nglan (2not of that .inding and conclusive character3) e pro.ate only verifies validity of form of will, .ut su.stantive challenges can still .e made"uently Succession de "rien notarial 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 Igale3 to ], Q, AK 9 charities >udge pro.ated 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 pro.ate ''- raises several "uestions5 (#) &fter pro.ate, is will more conclusive+ 4C5 simply prima facie proof of validity, can still .e contested (-) Dho must .e summoned+ Kather than summoning all poss. interested parties, <uccession /oulin decided that narrow interpretation of 2hIritiers et successi.les connus3 e people named in will who have (heirs) or who have not yet (successors) accpeted (.ased on Gomery N.@s ruling in <ucc. de Aamothe- 1cKo.ert) e pragmatic, common sense approach which lowers costs 9 takes acct of fact that pro.ate L only 2minor3, not meant as arena for contestation? neverthless, has .een contested5 cf. 1e 1ichaud, 4otary !alpis, Oortin v. Oortin, Furand which cast net wider, e.g., all intestate =s, pers. named in revoked wills... petition (a.k.a. 2motion3) for pro.ate (:3 CC/5 cf. /. #,$ cs.k 9 handout) should name estate 9 interested party (others can .e mis-en-cause) (:: CC/), can .e presented to >udge or ct clerk (new law allows presentation to notary)? cf. ,,' CC/ (''- CCQ) )#: CCQ (,$3 CC/)5 letters of verification L similar to pro.ate, may .e re"uested when prop. situated outside disposed of in will e provides foreign >uris. w0 ct approved doc. (seal) to authori;e transfer of prop. to to li"uidator in, etc. (usuaully for notarial or holo. will. since witness will e ists in com. law >uris.) ''%5 even photocopy of will that L lost or destroyed cannot .e pro.ated e must #st proceed .y action in reconstitution (cf. !rudel v. !rudel5 photocopy L only element of proof in action in reconst., cannot .e directly pro.ated)? note5 only applies to witness 9 holo. wills (since notarial will cannot .e destroyed5 they stay in greffe) 1Itivier v. /arent R#$33S <.C.K. %$:5 2arm-chair3 interpretation rule L ct must glean intention of ! from w0in 2% corners3 of doc.? however, '#% has led to 2ad hoc3 >ustice, given attempts to employ e"uita.le approach e state of the law L vague, strict formalism of '#3(#) L attenuated .y '#%, '#3(-) 9 '-,(-) Successions de "rien where the document .rought forward for pro.ate was contested on the ground that no property was .eing given ((e leg7re 8 part gales 8 9: % et 'orraine). =ere the will was accepted for pro.ate * even if this a good argument it must .e made in a separate proceeding on the su.stance. Poulin case where Dilfred /oulin is in the hospital and the 2wills3 produced in evidence after his death were drafted in a flurry 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 the witnesses are all saying different things a.out where they signed it. !here is a pro.lem with the contemplation of death in the first document * it looks like Dilfred thought he was signing a power of attorney in case of his incapacity (2confusion in his spirit3). !here are three other .its of paper. !hese do not constitute a single >uridical act (art. '(%). !his is a total mess and would .e null under art. '#3. =owever, art '#% allows for e ercise of interpreting the testamentory intention and the >udge has the discretion to decide if what is e pressed is what Dilfred wanted. !here is a mysticism here a.out the meeting of the minds after death. no e ceptions, e.g., no oral wills, e cept '#% gives ct discretion to accept imperfect will (cf. Dilfrid /oulin case5 will pro.ated, even though great deal of uncertainty, imperfections of form e Aegis. seems to .e going in - diections at once) <uccession d@&lmond (p.3):)5 follows /oulin et al. Ca..a v. 7alceanu (p.3,#) good summary, same result Ste-%arie Artic&e 82.;(A9 8/ood artic&e9 Oocus on a.'#%5 applies to holograph and witness wills. !his is the e ception to the rule that a will that does not meet the re"uirements of form is nul. a.'#3 states that invalid notarial will could still .e saved as a witness will. &s a witness will, it can .enefit from a.'#%. through a.$ and %( and rules of !ransition, '#% is retroactive to wills made prior to #$$%. Oor '#% to apply, the will must .e lacking in re"uirements of form, .ut essentially satisfactory. Ourthermore, the will must contain certainly and une"uivocally the last wishes of the deceased. !hese - conditions must occur simultaneously. =olographic will ('-))5 written entirely .y testator. see p.%(' for signature5 is it essential or not remains a "uestion (p.%('). Ditness will ('-', '-$, '3().

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. Cn 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 e tent that anyone in close physical pro imity to the testator is a witness. Paradis ,. Gro&eau-!ober/e 82.;;A9 & holograph will is insufficient >ust .ecause it e presses the last intentions of the deceased. 6t essential and indispensa.le that the will .e written entirely .y the deceased. & will written .y someone else is invalid and cannot .e saved .y '#%. Succession de Pou&in ,. DuchMne 82.;;B9 6ntention of testator in holograph will with printed portions is fine. $. Contents o# Testa+entar- Dis2ositions

To2ic 1B T-2es 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 of someone. !hey .ypass or e clude the rules on legal devolution i.e. on an intestacy. ## &rt. '3# sets out 3 types5 (i) Bniversal 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). Bniversal co-legatees are governed .y the rule of e"ual sharing ( Glass v. Glass). !he fact that there are e ceptions of particular items does not destroy the character of the universal title according to art. '3: (can still .e the residual person). )arter is 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 no children and hence 1rs. Carter@s estate had the universal title. Glass v. Glass is 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 to wife and %(U to children), a dismem.erment of the right of ownership of the whole (e.g. usufruct to a sister and children the .are ownership) or a definite share (e.g. sister #03 of the property for a usufruct and children the .are ownership), or the ownership of a dismem.erment of the right of ownership of the whole or a definite share of all the immovea.le or movea.le property, private property, property in a community or ac"uests, or corporeal or incorporeal property (if more specific than one of these then it is particular title e.g. 2law .ooks3 rather than 2movea.le property3). &s with a universal legacy, e ceptions of particular items doe not destroy the character of a general title (art. '3:). Question5 Can a universal legacy co-e ist with a legacy .y general title+ Qes. 8.g. V the estate to Q (general) and the rest to ] (universal). & pro.lem arises if Q predeceases * does V go to ] or to intestate heirs+ !his depends on whether you view ] 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. - legacies .y general title * V to daughter and V to her % children >ointly. 6f one child dies then her share goes to the other 3 surviving children. &rts. ':: and ':) on accretion for legacies .y particular title also apply to >oint universal and >oint general 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 -(, e amples !he 8ffect of Aegatees (&rts '%3 to '%$) * to esta.lish one@s status as an heir 6f you want to e clude fruits and revenues from a property then must do so e plicitly (art. '%3). &rts '%% to '%) are instances of the general principle that the legatee gets the property in the condition it was in when the testator died. !erms and conditions attached to a legacy do not preclude transmission (art. '%'). &rt. '%, says that a legacy to a creditor is not presumed to have .een made as compensation for his claim. &rt. '%$ on representation (not for particular legacies and where testator has e plicitly e cluded 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 it remains in his intestate succession and devolves according to the rules on the legal devolution of successions.

<ummary5 'apse deals with a defect arising when the legacy takes effect, nullit& deals with a defect arising from when the will is drafted or signed, revocation is not a defect .ut renders a legacy inoperative prior to it taking effect, and resolution is .ased on a"uent event. La2se 8arts CA( to CA39 * !his is a defect that did not e ist at the time the will was made .ut is discovered at the time the legacy .ecomes due or takes effect i.e. when the testator dies, a term comes due or in the case of a trust when a .eneficiary comes due. !he will is still valid even if there is lapse e.g. the nomination of the li"uidator. Aapse situations include5 legatee predeceases testator and no representation, legatee refuses it, is unworthy or legatee dies .efore the fulfillment of a purely personal suspensive condition (art. ':()? if the .e"ueathed property perishes .efore the death of the testator (art. ':#)? a legacy charged with another legacy lapses from a cause depending on the legatee (e.g. finish agricultural school to get the farm) (art. ':-)? a li"uidator@s charge if he does not accept the office (art. ':3). Ainked then to .oth the person and the property. Nu&&it- 8arts CAC to C)19 * !hese are defects that e isted at the time the will is made. !hey include conditions that are against pu.lic order or impossi.le (art. ':')? penal clauses or e heredation to prevent contestation of a will * in terrorum clauses (art. ':,)? legacy to notary or notary@s family (art. ':$)? legacy to a witness (art. ')()? legacy to an owner, director or employee of a health or social services esta.lishment who is not a spouse or close relative (art. ')#)? and legacy of the property of another unless it is a charge like telling your hus.and to .uy a house for your son (art. ')-). !hese can effect the whole or part of the legacy * legacy to notary and witness specifically say it will not effect the other dispositions of the will !e,ocation 8arts C)3 to C)A and C)C9 * !he testator makes the will inopposa.le .efore it can take effect i.e. .efore his death. 6t can .e e press or tacit (art. ')3) & legacy made to spouses (or nomination as li"uidator) .efore divorce is revoked .y divorce or nullity of the marriage (unless it is clear from the disposition that it is to take effect notwithstanding) (art. ')%) # &"uent will revoking an earlier will need not .e in the same form (art. '))). Festruction, tearing or erasure is revocation (or knowing of destruction and not replacing it) (art. ')'). <"uent testamentary disposition is tacit revocation of a previous one to the e tent that they are inconsistent (art. '),). Court power to revoke is a charge .ecomes impossi.le or too .urdensome (art. ''#) e.g. could not have .een foreseen at the time it was accepted. !he court can eliminate the charge or reduce it. #3 !his means that revocation can result in 3 ways5 (i) from the act of the testator? (ii) from a material fact like divorce? and (iii) .y court declaration (legal or >udicial revocation). Bnlike nullity which can .e partial, revocation is total -- Kevocation of a revocation does not revive the original disposition (art. ''(), at least not automatically. 6n Mc)ade the letter was interpreted as a revocation of the revocation reinstating the original .ut this is allowed if the intention is e press or implied in what the person does. !eso&ution * !his is a defect that is .ased on a"uent event e.g. li"uidator not discharging his duties properly. General * where there is failure then the property will go to the person who would have taken without the clause e.g. intestate heirs in the case of a failed universal legacy, universal legatee in the case of a failed particular legacy, a >ointlegatee in the case of a failed >oint-legacy. Dhere representation cannot take place, failure can give rise to accretion. &rts. ':: provides for accretion .etween particular legatees when property is .e"ueathed to them >ointly and there a lapse occurs with regard to one of them. &rt. ':) sets out conditions in which a legacy .y particular title is presumed to .e made >ointly * if it is made in one and the same disposition and the testator has not allocated a specific share or has allocated e"ual shares, if the entire property is .e"ueathed .y the same act to several persons separately. 8gs5 &, B, and C are >oint universal legatees. & predeceases B and C and each takes V of &@s #03. !his is the same if they were >oint general legatees -- &@s #03 will not go the universal legatee. /articular legacy of a house to & and B. C is universal legatee. 6f & predeceases, her share goes to B not C (art '::). & is given W)((( and B W%(((. C is universal legacy. 6f & predeceases, her share goes to C (falls outside of art. ':)) & /icasso to & and a /icasso to B in the same document. &rt ':)(3) gives a presumption of >oint-legacy. 6f & predeceases then B takes. 6mmovea.les left to & and B, there is accretion. But if immovea.les left to & and movea.les to B then no accretion. 6f the same category of property is left to two people then there is accretion, .ut if the category of property is different there is not.

Aike gifts M) (art. :#$), gifts in consideration of marriage and contracts of insurance (art. -%:$). Foes 2spouse3 mean the status or the person+ Can say 2giving ] to my former spouse regardless of the fact that we are divorced.3 #3 /arallel provision for gifts at art #,3%.

Bsufruct 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 (BA)5 '3- universal legatee L entitled to entirety e known as 2residuary3 legatee - '3:5 e ception of particular items do not destroy univ. character - indicates !@s intention to e clude intestate heirs (unless invalidity)5 cf. Carter v. Goldstein5 alternative BAs (wife 9 child)? 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 attri.uted e"ually .etween remaining co-legatees - Glass v. Glass5 in a.sence of allotment, B co-As share residue e"ually (2take in e"ual ali"uot parts3) (-) Aegacy .y General !itle (GA) - '33(#)5 gives vocation0entitlement of ownership of determined portion of !@s estate L 2ali"uot3 - '33(-)5 dismem.erment 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 of ac"uests, corp. or incorp.( e haustive list) - '3: also applies (part. legacy does not destroy GA) - can BA co-e ist w0 GA+ e.g., 26 leave #0- to ] (GA) and the rest to Q (residue e BA)3 e - theories5 (#) either Q considered to actually have only ali"uot share of #0- .y implication, i.e., - GA or (-) Q truly has BA, in which case if ] predecesaes !, Q 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 /3 e 1 9 / each get #0%, .ut .y accretion, if 1 predeceases !, / inherits #0-? 2#0- to my daughter and #0- to her children3 e if one child predeceases, his share would .e divided e"ually among 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 movea.les in Que.ec3 where ther are some in Cnt. !ypes of Aegacies (p.%))) Carter v. 1ontreal !rust (#$-#---), )3 <CK -(' 1. 5acts has two clauses in will, the #st which give his widow the proceeds of W-:k invested in trust which reverts to the @s estate on either her marrying or on her death and the - nd which leaves the rest of the estate to his issue, if there is any, to .e held in trust until they are -# and if there are no issue then it devolves to the widow. !he widow remarries. 1. Issues 6s the widow entitled to the W-:k+ 3. .o&din/ Qes, as it passes in the residue of the estate and not as an intestacy. ;. !atio

Glass v. Glass, R#$)$S C< %,% 1. 5acts Dill contains the following terms 26 X .e"ueath to my wife and my children my all to do with as she (my wife) may see fit.3 1. Issues 6s the wife entitled alone to full powers over the estate+ 3. .o&din/ Qes, .ut only until it can .e distri.uted among the heirs. ;. !atio !he cardinal rule of interpretation is to seek the intention of the testator which is to .e gathered from the words an e pressions used according to their ordinary meanings, taking the will as a whole and giving effect to each and every part. =e goes on to find that the clause means the wife shall .e free to deal with or dispose of the @s property for the purpose of paying his de.ts and finally li"uidating the estate so as to permit the due distri.ution. !he distri.ution was not to .e postponed .eyond the date when the de.ts had .een paid. LabbI ,. La#&a++e 82.;C19 Aegacy to child of health service is ok. "&anchette-%i&&er ,. "rochu 82.;CA9 !he defendant was not operating an esta.lishment prohi.ited .y a.')#. !herefore the legacy is valid. To2ic 1< Le/iti+ac- o# Dis2ositions D Conditions &rt. ':' says that a condition that is impossi.le or contrary to pu.lic order is deemed unwritten. !hus, a clause limiting the rights of a surviving spouse in the event of remarriage is deemed unwritten.

!he condition is supposed to .e read out .ut the disposition stands. Clauses limiting spouses right to remarry have not .een rendered null * a Charter challenge failed (giving an income to a spouse until she remarries is not seen as an infringement on her changing her civil status). Could draft the will saying 2Bntil her remarriage to someone with a healthy economic status.3 Cha+2enois Artic&e 82.;C)9 homose ual relations were against pu.lic morals. Canada Trust ,. Ontario .! Co++ission 82.;CC9 references to race and religion should .e struck out. !e 6ishart Estate 82.;CB9 horses should not .e put to death. Centra& 6arrant- Trust ,. Le#eb,re-Ger,ais 82.;C<9 Oirst, the intentions of the testator must .e assessed. !his clause is valid Art. AA3 CCP 82.;BA9 "outros ,. Assurance-,ie Des@ardins-Laurentienne 82.;B)9 Clause of unsei;a.ility is invalid. To2ic 1( S2irit D Techni4ue o# Inter2retation !he golden rule of interpretation is to choose the interpretation that gives effect to the testator@s intention. Inter2retation o# &ibera&ities 82.;BC9 &ll clauses of a will are interpreted the ones .y the others, giving to each the meaning to .e derived from the entire act. 6n other words, one clause of a will must not .e isolated from the entire conte t in which it is found. Au/er ,. "eaudr- 82.;B<9 2fair and literal meaning to the language used (as opposed to assuming what a reasona.le person must have meant when using such language). Lec&erc ,. La#rance 82.;<(9 Bse ordinary interpretation of language.