2016 QCCA 632, 2016 QCCA 632

Agence du revenu du Québec c. Small 2016 QCCA 632 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025326-158 (500-17-080420-139) DATE: APRIL 13, 2016 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. NICHOLAS KASIRER, J.A. MARIE-JOSÉE HOGUE, J.A. AGENCE DU REVENU DU QUÉBEC APPELLANT – defendant v.

LESLIE SMALL DERRICK JOSEPH GREATOREX JOSEPHINE MARGARET FRASER FREDERICK BRIAN GREATOREX PATRICIA AGNES HARDMAN STELLA GERTRUDE HUGUES JACQUELINE ERIC GREATOREX RESPONDENTS – plaintiffs JUDGMENT [ 1 ] The Agence du revenu du Québec appeals a judgment of the Superior Court, District of Montreal (the Honourable Mr. Justice Thomas M.

Davis), rendered on May 5, 2015, granting in part a petition of inheritance brought by the respondents. [ 2 ] For the reasons of Kasirer, J.A. with which Thibault and Hogue, JJ.A. agree, THE COURT: [ 3 ] DISMISSES the appeal, with legal costs; [ 4 ] CONFIRMS the judgment of the Superior Court, with the exception of the order made as to costs, and ORDERS that costs at trial be awarded against the appellant. FRANCE THIBAULT, J.A. NICHOLAS KASIRER, J.A. MARIE-JOSÉE HOGUE, J.A.

Mtre Philippe Veillette Revenu Québec – larivière, meunier For the appellant Mtre Antoine Aylwin Fasken Martineau DuMoulin For the respondents Date of hearing: March 10, 2016

REASONS OF KASIRER, J.A. [ 5 ] A man died intestate. At the time of his death, it was thought he had no family whatsoever. The public curator liquidated his estate and remitted the residue to the province as unclaimed property. [ 6 ] Many years later, distant cousins on his father’s side of the family were found in England by a business specializing in the recovery of unclaimed estates.

The cousins instituted proceedings against the provincial authorities in order to have the balance of the estate turned over to them as the sole heirs of the deceased. [ 7 ] The province recognized the cousins in the paternal line as heirs but was concerned that relatives in the same degree in the maternal line might later come forward with a legitimate claim to a share of the estate.

Accordingly, the authorities agreed to remit one- half of the residue to the paternal heirs and sought to withhold the balance, on the basis of their understanding of the rules of succession, until the prescription period for the unknown maternal heirs claim expired or until it could be established that no maternal heirs existed. [ 8 ] Can the province withhold the property from the relatives in the paternal line – the only known heirs of the deceased – and, if so, under what authority?

I Facts and Proceedings [ 9 ] The Agence du revenu du Québec has appealed a judgment of the Superior Court granting a petition of inheritance brought by the respondents, cousins of the late Philip Ronald Hughes, and declaring them to be the deceased’s sole intestate heirs. The judge ordered that the whole of the residue of his estate be remitted to them immediately, in equal shares. [ 10 ] The facts are not in dispute. [ 11 ] In 1990, Mr Hughes died in Montreal at the age of 65. He left no will.

Because his succession opened prior to the coming into force of the Civil Code of Québec , the rules relating to the devolution of intestate successions in the Civil Code of Lower Canada apply to Mr Hughes’ estate. [1] [ 12 ] At death, Mr Hughes was unmarried and had no children or other issue. His parents, who were born in England, had predeceased him. He had no brothers or sisters. In the months following his death, no relatives filed a claim on the estate. [ 13 ] Mr Hughes had been subject to a curatorship at the time of his death.

The public curator continued to administer his estate thereafter pursuant to provisions of the Public Curator Act then in force. [2] When no heirs came forward after Mr Hughes’ death, the public curator liquidated the estate in accordance with its statutory responsibilities and, some time in the 1990s, remitted the residue to the Ministry of Finance.

When the Minister of Revenue took over administrative responsibilities for unclaimed property in the province in 2006, the estate was thus already in the hands of the Minister of Finance who held it as property of the State. [3] [ 14 ] In December 2013 – more than 23 years after Mr Hughes’ death – the respondents commenced proceedings to claim the whole of the estate by way of a “petition of inheritance” (in French a “petition d’hérédité”). They said they were relatives of the late Mr Hughes in the paternal line and, as such, his sole intestate heirs.

They had been previously located in England by Mondex Corporation, a Canadian company in the business of seeking out heirs and assisting them in the recovery of unclaimed estates. A family tree prepared in support of the petition was filed in evidence by the respondents and is reproduced as

Schedule I to these reasons. [ 15 ] Great nephews and great nieces of Mr Hughes’ father, the respondents are second cousins of the deceased. They are his ordinary collateral relations, in the paternal line, in the same degree. [4] The bonds of filiation between the respondents and the deceased are not contested. [ 16 ] The respondents’ parents had failed to assert their rights as heirs of the estate before the prescription period applicable to their claims expired on December 31, 2003. Prescription began to run against the respondents on January 1, 2004.

The parties agree that their petition of inheritance, subject to a ten-year limit, is thus not prescribed. [5] [ 17 ] No other persons have come forward to claim a share of the estate to date. In addition, no other successors are known to exist apart from the respondents. [ 18 ] In their amended petition of inheritance filed in the Superior Court, the respondents sought a declaration that they are the sole heirs of the deceased.

They claimed that, given the absence of heirs in the maternal line, the whole of the residue of Mr Hughes’ estate should devolve to them, in equal shares, with interest, pursuant to the rules in the Civil Code of Lower Canada on intestate successions. They also asked for a detailed accounting of the liquidation of the estate. [ 19 ] In its defence, the appellant submitted that when no heirs came forward after liquidation, the balance of the estate fell to the province as unclaimed property.

It acknowledged that persons having a proper claim to the estate could secure the remittance of the property thereafter from the Minister of Finance, but only if they established their status as heirs in respect of the entitlement claimed. The appellant took the position at trial, reiterated on appeal, that the respondents had failed to establish their entitlement to the whole of the succession. [ 20 ] The appellant conceded that the respondents have a right to a share of the succession as ordinary collateral heirs under the Civil Code of Lower Canada .

The appellant argued, however, that under the applicable law of intestate succession,

article 634 C.C.L.C. provides that where the only heirs are ordinary collateral relations, the entire estate is subject to division (in French a “fente

successorale”), into two equal parts, one of which devolves to the nearest relation in the paternal line and the other to the nearest relation in the maternal line. The appellant argued that the nearest heir in the maternal line, should he or she come forward before the prescription period expires, would have a right to one-half of the estate alongside the respondents, heirs in the paternal line. The appellant submitted that the respondents had provided no evidence establishing that the deceased left no relatives in the maternal line.

Without proof that there were no maternal heirs, the respondents’ share should, at least for the present, be limited to 50% of the residue of the estate. [ 21 ] As a result, the appellant stated that it could not remit the whole of the estate to the respondents. In its view, the State should, for the present time, hold one-half of the remainder in accordance with provisions of the Unclaimed Property Act . II Judgment of the Superior Court [ 22 ] The trial judge granted the petition of inheritance and declared the respondents to be “the only currently identified heirs of the deceased, Philip Ronald Hughes”.

As such, he concluded, they were entitled to receive the entire residue of the estate, to be divided among them in equal parts, “under reserve of the rights of any currently unidentified heirs” (paras [44] and [45] of the judgment in appeal). [ 23 ] The judge recognized that the State had, prior to the respondents’ claim, acquired the residue of the estate as unclaimed property. Once the respondents had come forward as legitimate heirs in the paternal line, however,

article 636 C.C.L.C. precluded the State from continuing to claim ownership of all of or even one-half of the assets it holds (para. [37]). He declined to divide the estate into two family lines based on

article 634 C.C.L.C. because the division only operates in the event that there are “identified” collateral heirs on both the paternal and maternal sides. Moreover, he was of the view that one-half of the estate did not become the property of the State when no maternal heirs were identified, but that the whole devolved to the respondents by reason of the principle of the “unity of succession”. [ 24 ] The judge also addressed the question as to whether the balance of the estate could be remitted to the respondents in advance of the date at which the claims by heirs in the maternal line would be prescribed. Citing

article 627 C.C.Q., he decided that the heirs in the maternal line, if they ever came forward with a valid claim for their one-half share, could ask for restitution from the respondents. The judge acknowledged that the protection of the maternal heirs’ interest might not be as strong as it would be if the State were still administering their portion of the estate.

In his view, however, this factor alone did not justify withholding the property from the respondents. [ 25 ] After rejecting the appellant’s arguments based on the Unclaimed Property Act , the judge wrote: [40] While the Court is by no means imputing an intention to the ARQ to confiscate the property of the Claimants, the effect of its decision to retain one-half of the succession has the same practical effect. The Claimants are deprived of one-half of the value of the succession and must rely on the ARQ to remit it in the event no heirs on the maternal side come forward within the prescription period.

This result is not one which is supported by the relevant legislation. [ 26 ] The judge ordered the appellant to remit to the respondents, in equal parts, the whole of the residue of the estate, with interest.

III Grounds of Appeal [ 27 ] In its inscription in appeal, the appellant asks that the judgment of the Superior Court be set aside, the amount remitted to the respondents be limited to 50% of the residue of the estate and that the claim to the one-half share devolved to the relatives in the maternal line be dismissed. [ 28 ] The appellant submits that the judge made several errors when he ordered that the whole of the estate be made over immediately to the respondents.

Its position can be usefully considered under two grounds of appeal. [ 29 ] Firstly , the trial judge is said to have misapplied the rules applicable to intestate successions and, in particular, of unclaimed successoral property. He failed to appreciate that, following liquidation, the State had title to the property under the Unclaimed Property Act and

article 701 C.C.Q. and could only remit it to persons who established their quality or status as true heirs. He further erred in law in imposing too light a burden on the respondents for establishing their right to the whole of the estate at a time when the rights of possible heirs in the maternal line were not prescribed. The judge should have divided the estate into two equal shares pursuant to

article 634 C.C.L.C., allotting one share to each of the paternal and maternal lines respectively. Given that heirs on the maternal side may still come forward, the judge should have allowed the province to retain 50% of the estate until the expiry of the prescription period. [ 30 ] Secondly , and in the alternative, the appellant says the trial judge was mistaken in stating that

article 627 C.C.Q. would allow heirs in the maternal line to obtain restitution of their share of the residue if it were remitted to the respondents. If it turned over property to the respondents without further proof of their entitlement, the appellant fears it would be exposed to civil liability should ordinary collateral relations in the maternal line later come forward and fail to obtain restitution from the apparent heirs. [ 31 ] Each of the appellant’s two grounds of appeal will be considered in turn. For convenience sake, the principal provisions of the Civil Code of Lower Canada , the Civil Code of Québec and the Unclaimed Property Act are set out in

Schedule II to these reasons for judgment. IV Discussion IV.1 Did the judge err in deciding that the appellant had no right to retain 50% of the property in the circumstances? Did he err in concluding that the respondents had established their right to the whole of the estate? [ 32 ] In order to address the appellant’s arguments on this first ground, it is useful, as a preliminary matter, to clarify both (1) the basis of the differing claims each party asserts to the property and (2) the burden of proof incumbent on the respondents for their petition

of inheritance, before proceeding to consider (3) the application of that burden by the judge to the facts of the case. IV.1.1 The basis of the parties’ respective claims to the estate [ 33 ] As noted, the respondents are ordinary collaterals of Mr Hughes. In default of ordinary collaterals in the maternal line, they stake their claim to the whole of the estate on their quality as his sole heirs pursuant to the rule in

article 635 C.C.L.C. [ 34 ] What is the basis of the appellant’s claim to retain the property? [ 35 ] The circumstances in which the provincial authorities came into possession of the property of the estate bear recalling. When no family members came forward to claim the estate following Mr Hughes death in 1990, the public curator liquidated the succession. The sums of money representing the residue were remitted to the Minister of Finance and thereupon acquired by the State as unclaimed property. [6] [ 36 ] At the time of the institution of the proceedings in 2013,

section 30 of the Unclaimed Property Act , enacted in 2006, confirmed that the sums remitted to the Minister of Finance from Mr Hughes’ estate had “become property of the State / sont acquises à l’État”, subject to a possible claim by the heirs.

The Civil Code of Québec similarly provides that where a deceased leaves no known relatives within the degrees of succession and liquidation is completed – as was the case following Mr Hughes death – the amounts constituting the residue of the estate “then become the property of the State / sont alors acquises à l’État”, but are also subject to a claim by heirs. [7] [ 37 ] The appellant is therefore right to say that it had title to the money constituting the residue of the estate as unclaimed property at the time of the trial.

Contrary to what the respondents argue, the State is no longer an administrator of the property of another. Prior to liquidation, the State’s powers and duties were circumscribed, including a requirement, now expressed in

section 19 of the Unclaimed Property Act , that the property could not be commingled with that of the State. Once the liquidation is over, that requirement no longer applies. Following liquidation, the State’s title gives it prerogatives over the property that are broader than the powers enjoyed by the liquidator of an estate and, in principle, its formal obligation as liquidator to seek out the heirs has come to an end, subject to the important caveat in

section 1 of the Unclaimed Property Act and notice requirements imposed on the State, as discussed below. [ 38 ] But even if that money is property of the State following liquidation, the rightful heirs could claim it until such time as the prescription period expired. [ 39 ]

Section 30, para. 2 of the Unclaimed Property Act provides that, in like circumstances, the sum of money delivered to the Minister may be recovered, with interest, by a “right-holder / ayant droit” who establishes his or her “quality / qualité” as heir, subject to the rules on petition of inheritance, including prescription. The title over the sums acquired by the State as recognized in

article 701 C.C.Q. is similarly subject to a claim by late-coming heirs: the Code expressly provides that the amounts may be recovered, again with interest, by heirs “who establish their quality / qui établit leur qualité” within ten years from the opening of the succession or, as is the case here for the respondents, from the date their right arose on January 1, 2004. [ 40 ] The appellant contends the judge misunderstood that, after liquidation, it has title to the funds in question and is no longer a mere administrator of this property. [ 41 ] I disagree. [ 42 ] The judge did occasionally use language to suggest that the provincial authorities continued to administer the property.

When read as a whole, however, his reasons do not indicate that he considered the State to be the administrator of property of another but, as he stated, an “owner” (or title-holder) of the sums of money constituting the residue of the estate. The judge characterized the State’s interest in the residue of the succession at paragraphs [14] and [15] of his reasons as follows: “although the state is owner of the money in a succession, the state is bound to return it if an heir is identified” and “the state’s ownership is conditional on there being no heirs”.

I understand the judge to have used the term “ownership” in its generic and not technical sense as a means of describing the State’s title to the property in question, which is a sum of money, not typically thought of as the subject-matter of the right of ownership. Following liquidation, however, the title to the sums that fall to the State is, in the judge’s words, “conditional”, until prescription runs out to exclude possible claims by legitimate heirs.

While the title itself is unencumbered, the State will only be free of possible claims by heirs after the relevant prescription periods expire. [ 43 ] The judge was not wrong to use the image of conditional ownership, even though, technically speaking, the State has outright title to the sums of money from the time of acquisition and a distinct debt, to the heirs, of an equivalent amount, with interest, if and when a proper claim is made within the prescription period.

While the title itself to the sums in question is held outright, the State will only be free of possible claims by heirs after the relevant prescription periods expire. At that time, even a successor “who has been unaware of his heirship / qui a ignore sa qualité” is deemed to have renounced the succession (article 650 C.C.Q.). The judge made no mistake in law in his characterization of the State’s title. [ 44 ] The recoverable character of the money associated with the State’s title is made plain by

section 1 of the Unclaimed Property Act , a provision that the appellant failed to mention in argument: 1. La présente loi a pour objet de favoriser la récupération par leurs ayants droit des biens non réclamés et d'assurer la remise à l'État des biens sans maître ou dont les ayants droit demeurent inconnus ou introuvables. Elle prévoit les règles régissant l'administration provisoire de ces biens. 1.

The purpose of this Act is to facilitate the recovery of unclaimed property by right-holders and to ensure that property without an owner or property in respect of which the right-holders remain unknown or untraceable is delivered to the State. The Act also sets out the rules governing provisional administration of that property.

[ 45 ] In our case, the disputed one-half share of Mr Hughes liquidated estate will necessarily be recovered, pursuant to the policy announced in

section 1 , by one or another of his heirs and will never become the outright property of the State. [ 46 ] Unlike scenarios in which all right-holders remain “unknown or untraceable / inconnus ou introuvables” at the expiry of the prescription period, there are known, legitimate heirs to the Hughes estate: the respondents. What is more, under the law of intestate succession, the province has no ultimate claim to this estate in its own right. The recognition by the appellant that the respondents are legitimate heirs of the estate means that the State’s title must necessarily give way at some time.

In other words, in response to the action by the respondents the State has no claim to the contested property pursuant to

article 606 C.C.L.C. because there are known heirs – the respondents – of the late Mr Hughes. This is not an instance in which the Crown comes forward as an “irregular successor / successeur irrégulier” under

article 636 C.C.L.C. [8] It is not a case of a succession that is “vacant / vacante” pursuant to articles 684 or 685 C.C.L.C. [9] Despite what may have been some uncertainty on this point at trial, the appellant – defendant in the petition of inheritance – has no claim and makes no claim to the residue of the estate in its own right under the law of succession. [ 47 ] Stated simply, the residue of the succession after liquidation was unclaimed for a time but that is no longer the case.

Again, the judge made no mistake on this point when he wrote: “Now that the Claimants [ i.e . the respondents] have come forward, the state can no longer claim ownership of the entire succession; but can it claim ownership of half of it, or at least an obligation to hold half of the assets?” (para. [15]). [ 48 ] What remains to be determined is the answer to the judge’s question: notwithstanding the respondents’ claim, can the appellant nevertheless retain the one-half share of the residue for the duration of the prescription period which share, it says, should devolve to the relatives – presently unknown – in the maternal line?

IV.1.2 The burden of proof for the respondents’ petition of inheritance [ 49 ] The appellant submits that in deciding whether it could retain the disputed property, the judge erred in law in his

interpretation of sections 30 and 31 of the Unclaimed Property Act and

article 701, para. 2 C.C.Q., specifically in that he misapprehended the content of the burden of proof incumbent on the respondents who claim the whole of the residue of the estate pursuant to articles 634 and 635 C.C.L.C. [ 50 ] The appellant argues that as ordinary collaterals in the paternal line, the respondents only have a right to one-half of the estate pursuant to the rules on the fente successorale , “à moins de pouvoir établir qu’il n’existe aucun successible dont les droits ne seraient pas prescrits dans l’autre ligne tel que stipulé à l’article 635 C.c.B.C.”. The appellant says the respondents failed to meet that burden, imposed by

section 31 of the Act and

article 701 C.C.Q., because they did not prove their quality as Mr Hughes sole intestate heirs. [ 51 ] The respondents disagree: they argue that they only have to show that they are ordinary collaterals of the deceased and, in the absence of any other claim by a known heir, the State must remit the property to them. [ 52 ] On the content of the burden of proof, the judge wrote that the appellant was too harsh in what it required of the respondents: [30] The Court is also of the view that the ARQ gives

article 31 of the Unclaimed Property Act an

interpretation that is too broad in scope, particularly when one considers the goals of that act and the other stipulations of the Civil Code of Lower Canada. [31]

Article 31 requires a claimant to establish his/her right to the claimed property. It does not require the claimant to prove that there is no one else with a potential claim on the property. [ 53 ] It is true that the judge said little about the precise content of the burden facing the respondents beyond the observation – quite right in my view – that

section 31 does not require absolute proof of the non-existence of other potential claimants to the property. But they did have to show, on the balance of probabilities , that there were no ordinary collaterals in the maternal line in order to demonstrate, under the terms of

article 635 C.C.L.C., their entitlement to inherit the whole of the residue. [ 54 ] This required the judge to evaluate the evidence adduced by the respondents to establish their right to the property. While the judge could have been more explicit in respect of what needed to be proved, for the reasons that follow I am not convinced that he erred on this point. [ 55 ] What, in law, was the burden the respondents faced at trial? [ 56 ] In order to justify their claim to the disputed sums of money as “right-holders” against the State, the respondents had to show, on the balance of probabilities, that they are intestate heirs entitled to the entire residue of Mr Hughes' estate.

Section 31 of the Unclaimed Property Act provides: 31. Il appartient à celui qui réclame un bien ou qui veut récupérer une somme auprès du ministre d'établir sa qualité. 31. It is incumbent upon persons who claim property or want to recover a sum of money from the Minister to establish their quality. [ 57 ] The burden of establishing their “quality / qualité” under

section 31 is, in substance, the same as the quality of heirship spoken to in

article 701, para. 2, C.C.Q. Both the Act and the Code specify that this must be done within the applicable prescription period. [ 58 ] It is the same burden as that required to succeed in a “petition of inheritance”, such as the one brought by the respondents.

This action is a judicial proceeding whereby a plaintiff seeks to assert his or her vocation to inherit property under the rules of succession and oblige the defendant, who holds the property on the basis of an allegedly lesser title, to respect that vocation. [10] As a general rule, the petition of inheritance is brought by would-be heirs against the holder of disputed property who claims, as well, to be an heir or legatee under the law of succession. [11] This Court has nevertheless held that it is not inappropriate that a petition of inheritance be directed, as

in this case, by a would-be heir against the Minister of Revenue, even after an unclaimed estate has been liquidated and the residue remitted to the Minister of Finance, in the name of the Crown in right of the province. [12] [ 59 ] In its defence before the trial judge, the appellant characterized the petition of inheritance as incomplete, stating “[l]es demandeurs doivent en effet démonter l’absence de parents successibles au moment de l’ouverture de la succession jusqu’au huitième degré”.

On appeal, the appellant retreated somewhat from this position, acknowledging that it would be unfair to hold the respondents to an impossible burden of proof. But the appellant reiterated its argument that the respondents had made “no effort” to show an absence of heirs in the maternal line at trial, noting that they had filed no affidavit evidence as to whether they were aware of the existence of maternal heirs.

Moreover, no evidence was brought that Mondex Corporation – the company that located the cousins on Mr Hughes father’s side – had made efforts to find heirs on the mother’s side. [ 60 ] As a result, says the appellant, the respondents have no right to the one-half portion of the estate reserved for relatives in the maternal line according to the division of the estate required by

article 634 C.C.L.C. Until such time as the maternal heirs come forward, or at least that the applicable prescription period expires, the State should retain that one-half share of the estate pursuant to sections 30 and 31 of the Unclaimed Property Act and

article 701 C.C.Q. [ 61 ] In answer, the respondents resist the argument that a division between ordinary collateral heirs in the maternal and paternal lines should be undertaken here. They recognize that, pursuant to

article 634 C.C.L.C., the division would apply had relatives in both lines sought a share of the estate, but insist that when no such heirs in the maternal line came forward, they were entitled to the whole once they established their quality as ordinary collaterals. Moreover, the State cannot, on the basis of the Unclaimed Property Act or otherwise, oppose its title to the estate to the respondents who, by the appellant’s own account, are the sole legitimate heirs to have come forward to date.

They argue that the judge was correct, therefore, in recognizing that the whole of the property should be remitted to them now. [ 62 ] The respondents went further in their argument before the Court: they described the decision of the appellant to withhold the property as arbitrary, unfounded in law, and undertaken in violation of the right to property recognized in

section 6 of the Quebec Charter of Human Rights and Freedoms. [ 63 ] With respect, I am of the view that both parties have mischaracterized the burden of the respondents in respect of a petition of inheritance made against the State which holds an estate as unclaimed property. [ 64 ] In his treatise on the law of intestate succession, Albert Mayrand explained the nature of the petition of inheritance as follows: La vocation héréditaire est sanctionnée par l’action en pétition d’hérédité. C’est l’action par laquelle un demandeur, invoquant sa qualité d’héritier ou de successeur irrégulier, réclame la totalité ou une

partie de l’hérédité contre le possesseur […].

Cette action a un double but : établir la vocation héréditaire du demandeur et contraindre le défendeur à respecter les droits de l’héritier. [13] [ 65 ] Satisfying this burden in connection with this proceeding imposes two requirements on the respondents, as French scholar Pierre Raynaud observed: “Le demandeur à la pétition d’hérédité doit prouver sa qualité d’hériter, c’est-à-dire qu’il est parent du défunt au degré successible, et qu’il vient au rang utile”. [14] [ 66 ] It is insufficient for the respondents to demonstrate the existence of the bond of filiation that connects them with the late Mr Hughes alone; they have to show, on the balance of probabilities, their legitimate bond of heirship.

The quality or status of heirship is a relational concept that binds a person to the deceased for the purposes of succession. [15] [ 67 ] To establish their “quality” as heirs within the meaning of

section 31 of the Unclaimed Property Act and

article 701, para. 2 C.C.Q., respondents had to demonstrate that they have the proper rank in the order of succession – “le rang utile”, to use the expression of Professor Raynaud – that would entitle them to the whole of the estate. The respondents had to show, on the balance of probabilities, that the division set out in

article 634 C.C.L.C. did not apply and that, as ordinary collaterals of Mr Hughes, they had the quality of heirship, including the proper rank, to take the whole of the remainder under

article 635 C.C.L.C. [ 68 ] To exclude application of the fente , the respondents had to demonstrate, on the balance of probabilities, that there were no ordinary collaterals in the maternal line. An intestate succession is only divided into two lines pursuant to

article 634 C.C.L.C. if ordinary collaterals exist in both lines. [16]

Article 635 C.C.L.C. directs that in default of relatives within one line, those in the other line inherit the whole. [ 69 ] While there is no dispute that the respondents are ordinary collaterals, in the same degree, in the paternal line, they also had to bring some evidence upon which the judge could rely indicating that there were no other heirs to compete with them their claim. When they came forward and demanded that the State remit unclaimed successoral property, the respondents had to do more than establish that they were successors in a heritable degree to meet the burden in

section 30 and

article 701. They had to bring evidence that they were of the proper rank, i.e . that they were sole ordinary collaterals. [ 70 ] That said, the position asserted by the appellants at trial, that the respondents had to disprove absolutely the existence of maternal heirs, is impractical and unfair. Beyond the filing of acts of death of persons known to have existed, it is generally impossible, or nearly so, to prove the non-existence of heirs. [17] Setting up an unduly high hurdle for a person seeking the return of unclaimed property strikes me as contrary to the duty incumbent on provincial authorities, spoken to in

section 1 of the Unclaimed Property Act , of facilitating the recovery of unclaimed property by right-holders. [ 71 ] By the same token, however, the respondents have understated their burden. Where the competent authorities have completed the liquidation of an unclaimed estate, the appellant is entitled to insist on evidence, beyond kinship, that the person claiming the estate comes at the “proper rank” in relation to others who could make a claim on the estate. It is appropriate for the State to consider its duty, pursuant to the very same

section 1 of the Act invoked by the respondents, to facilitate the recovery of unclaimed property by other “right-holders” who have not yet formulated a claim.

[ 72 ] Thus, in Deshaies , [18] this Court confirmed a trial judge’s refusal to order that property be remitted by the State to a collateral heir in the seventh degree because the burden of proving heirship was not met on the balance of probabilities.

My colleague Chamberland, J.A. wrote that the claimant, while undoubtedly a successor, had failed to meet her burden of proving her quality of heirship: [8] Le lien de parenté avec la défunte ne fait pas de doute; l'appelante est donc une successible de celle-ci, ce qui n'est pas contesté par l'intimé. [9] Il existe toutefois d'autres successibles potentiels, par exemple les père et mère de la défunte, le père de l'appelante, Jean-Luc Deshaies, qui, selon la preuve, vit toujours.

Il se pourrait également qu'il y en ait d'autres, par exemple des frères et sœurs de Mme Groulx, des neveux et nièces, etc. […] [47] La preuve de l'appelante se limitant à établir son lien de parenté avec la défunte, mais ne permettant pas de déterminer quand son droit à la succession s'est ouvert et si elle est la seule successible dont le droit n'est pas prescrit, le juge de première instance était bien fondé de conclure au rejet de sa demande.

À cet égard, je note qu'à l'audience l'intimé reconnaissait le droit de l'appelante de présenter une nouvelle demande comportant la preuve que les autres successibles des degrés antérieurs au sien sont décédés ou ont renoncé, volontairement ou par l'effet de la loi, à la succession. [Emphasis added.] [ 73 ] It is thus possible for a claimant to be denied immediate title to an estate pending the anticipated claims of other successors or heirs. But it should be noted that the facts in Deshaies were quite different from those in the case at bar.

As Chamberland, J.A. noted at paragraph [9] of his reasons, other successors to the deceased existed and, according to the evidence, were still living at the time of the petition of inheritance. It was unlikely that the collateral heir in the seventh degree had the “quality” of heirship entitling her to the whole of her claim. In our case, there are no known successors or heirs other than the respondents, in the maternal line or otherwise. [ 74 ] With this burden in mind, I turn now to a consideration of the appellant’s argument that the judge erred in remitting the whole of the estate to the respondents.

IV.1.3 Burden of proof as applied to the facts of the case [ 75 ] The appellant submits that the judge erred in deciding there was sufficient evidence to substantiate the respondents’ claim to the whole of the estate. It alleges that there was “no evidence” of the non-existence of maternal heirs, such that

article 635 C.C.L.C. could not apply to exclude the fente . In the circumstances, the judge should have divided the residue according to

article 634 C.C.L.C. and left 50% in the hands of the State until the prescription expires. [ 76 ] The appellant thus alleges an error of fact in the evaluation of the evidence relating to the respondents’ quality of heirship.

It must show a palpable and overriding error committed by the judge in order to justify intervention on appeal. [ 77 ] In deciding that the respondents were immediately entitled to the whole of the estate, the judge did not comment extensively on the evidence they adduced, except to observe, quite correctly, that there was no dispute that the respondents were ordinary collaterals of the deceased, there was no dispute that they were the only known heirs, and that there was no evidence that other heirs or successors existed.

The judge’s conclusion to remit the whole of the residue to the respondents suggests, however, that he considered that the evidence presented in support of the petition of inheritance was sufficient to show, on the balance of probabilities, that no ordinary collaterals in the maternal line existed. [ 78 ] For the reasons that follow, I am of the view that no reviewable error has been shown impugning that conclusion. [ 79 ] What evidence was in fact brought forward by the respondents to meet their burden?

Surprisingly, the parties devote scant attention to this point in argument. [ 80 ] In support of their claim to the whole of the estate, the respondents provided what in Quebec are called acts of civil status – their birth records and certain death records of their ascendant relations prepared in England and elsewhere. By producing these records, the respondents sought to demonstrate their bond of filiation with the late Mr Hughes.

But the death certificates went further: they helped eliminate the possibility of claims by certain prior ranking successors and, thus, constituted partial evidence in service of their quality of heirship in the proper rank under articles 634 and 635 C.C.L.C. The respondents also provided a diagram illustrating the deceased’s family tree and indicating relatives in the paternal line and, except for his mother, no relatives in the maternal line.

This diagram was produced in evidence and was not challenged by the appellant. [ 81 ] Their claim was supported by an affidavit, prepared by Halina Kijowska, who declared that she acted as coordinator of the genealogical research in the file for the company that located the respondents in England. Ms Kijowska stated that the deceased had no siblings but said no more as to the existence of other relatives. The affiant made no explicit declaration in respect to the existence or non- existence of maternal heirs or whether they were sought out.

Moreover, in their petition of inheritance, the respondents content themselves with a declaration that no maternal heirs have come forward. They make no comment as to whether they know of any maternal heirs. The respondents themselves filed no affidavit evidence. [ 82 ] At trial, the respondents called no witnesses.

The appellant chose not to examine the affiant on her affidavit and only called an employee of the Agence du revenu du Québec who testified as to standard procedures in the department regarding unclaimed estate property. [ 83 ] Did the respondents show, on the balance of probabilities, their quality as heirs?

[ 84 ] It is true that the respondents filed no direct evidence as to whether or not they know of the existence of heirs in the maternal line. While it would have been virtually impossible for them to bring indisputable proof that there are no ordinary collaterals in the maternal line, the lack of a sworn declaration that they themselves knew of no such relatives is regrettable. In many families, even distant relatives are well enough informed to know whether or not other family members exist for the purpose of ranking in the succession.

In my view it would be appropriate, as a general practice, for persons presenting themselves in like circumstances to declare, in an affidavit or through oral testimony susceptible of scrutiny, that they believe themselves to be the sole heirs and thus entitled to the whole of the estate. This seems to me to be consonant with the burden of proving, on the balance of probabilities, their quality of heirship pursuant to

section 31 of the Unclaimed Property Act ,

article 701 C.C.Q., and in keeping with the scholarly opinion that a person filing a petition of inheritance must show that he or she has the quality of heirship in the proper rank. In some circumstances, given the virtual impossibility of proving the non-existence of relatives through direct evidence, a sworn declaration to this effect may well suffice to complete proof of heirship.

I note that, in Colizza , for example, affidavit evidence of this sort was filed in service of a claim made against the Agence du revenu du Québec. [19] [ 85 ] It is of course theoretically possible, based on the record in our case, that one or another of the respondents knew of the existence of ordinary collaterals in the maternal line, living in England or elsewhere, and simply were not asked or decided not to share that information. [ 86 ] Is the absence of a sworn declaration a bar to the respondents claim?

While the judge did not discuss the specifics of the evidence in detail, he plainly thought the record was sufficient to support the respondents’ claim against provincial authorities. I agree with his conclusion for the following reasons. [ 87 ] Firstly , more than twenty-three years had passed since Mr Hughes death and no relatives on the mother’s side have come forward. The judge noted this fact which is clearly evidence relevant to his conclusion.

This does not prove these people do not exist, especially in light of the fact that Mr Hughes mother was born in England and died in the United States. [20] But the judge was entitled to rely on the long passage of time – substantially more, for example, than in Deshaies – to justify his inference that these potential successors are non-existent or untraceable. [ 88 ] Secondly , and connected to the previous point, no relatives in the maternal line came forward notwithstanding notices published by provincial authorities as required by law.

As a general rule, when provincial authorities act as administrators or liquidators of an unclaimed estate they are required to give notice in the Gazette officielle and publish a notice to that effect in a local newspaper. [21] An inventory of the property must be prepared by the liquidator and published in the register of personal and movable real rights, as well as in the local press. A final account of administration must also be published. Importantly,

article 700 C.C.Q. – as noted above, a provision in the

section of the Civil Code bearing on the rights of the State to otherwise unclaimed successions – requires the public authorities responsible to publish a notice marking the end of liquidation indicating the extent of the residue of the estate and the “time granted to successors to assert their rights of heirship / le délai pendant lequel tout successible peut faire valoir ses droits d’héritier”.

The purpose of these formalities is plain: the authorities are bound to give notice as a means, however imperfect, of alerting interested persons, including successors, as to the existence of the estate and of any successoral property susceptible of being claimed. To my mind, these notice requirements amount to a clear direction by the legislature, consonant with

section 1 of the Unclaimed Property Act and the similar policy in articles 696 et seq . C.C.Q., that the province should only take the property as a last resort, after having sought out, in this way, family members having what the law considers to be a better claim to the estate. [ 89 ] In our case, the public curator, and not the appellant, acted as liquidator of the succession of Mr Hughes, but nothing in the record indicates that the proper notices were not given.

While the lack of response to notices is of course not conclusive, especially when relatives live out of Quebec, the absence of a claim by relatives in the maternal line, notwithstanding the notices, is further evidence that supports the inference that the respondents met their burden of proof on the balance of probabilities. [ 90 ] Thirdly , the record as constituted provides no evidence of other known successors.

In this sense, the evidence is, as noted, unlike that in Deshaies in which evidence in the record showed the existence of successors with a potentially better title to the property than the successor who had come forward. In our case, this fact, however inconclusive in absolute terms, is further evidence that encourages the inference that the respondents are not just the only known heirs, but that they are the only heirs and thus entitled to take the whole of the residue under

article 635 C.C.L.C. [ 91 ] Fourthly , there is some evidence in the record that potential heirs of a higher rank do not exist. Mr Hughes death certificate attests to the fact that he was single. There is proof of death of certain ascendant and privileged collateral relations. It is nevertheless true that there are no death certificates for ordinary collaterals in the maternal line, but if these people never existed, they of course would have no birth or death records. [22] [ 92 ] Fifthly , the family tree filed in evidence makes no mention of ordinary collaterals on the mother’s side.

The document was apparently prepared by the company working in service of the respondents’ claim and has, of course, no official character. There is no denying that its probative value is not robust. But it was not challenged, nor did the appellant examine the genealogical expert from the company, who produced an affidavit.

The purpose of the family tree may only have been to illustrate heirs in the paternal line, as it was described in the amended petition of inheritance, but the appellant was free to question the representative of Mondex and did not do so. [ 93 ] The evidence is not overwhelming as to the non-existence of relatives in the maternal line.

Frankly, the respondents did not prove, either, that they are the only ordinary collateral heirs in the paternal line, but the appellant makes no mention of this, apparently content to rely on the veracity of the family tree filed in evidence. [ 94 ] That said, the difficulty of proving the non-existence of competing heirs and successors is a necessary feature of the burden of proof in a petition of inheritance. Did Mr Hughes himself have unaccounted for children? Did his mother or father have siblings that are not spoken to in the record?

Establishing the order of succession in any intestacy may well involve, be it for a liquidator or a judge seized of a petition of inheritance, the occasional leap of faith when it depends on the proof of non-existence of family members. [ 95 ] I would add that when a petition of inheritance is directed against the State in respect of unclaimed property, the “quality” of

heirship should be interpreted with a view to honouring the State’s commitment, spoken to in

section 1 of the Unclaimed Property Act , to facilitate the recovery of property by rightful holders thereof. In the exercise of interpreting sections 30 and 31 of the Unclaimed Property Act and

article 701, para. 2 C.C.Q, my colleague Claude C.

Gagnon, J.A. usefully observed in Colizza : “ces dispositions, que l’on peut qualifier de réparatrices, ont justement pour objet de faciliter la récupération par l’ayant droit de son bien et doivent, à mon sens, recevoir une interprétation plus large pour pouvoir atteindre de façon cohérente cette finalité”. [23] [ 96 ] The aspects of the record set out above, in particular the long passage of time since Mr Hughes death, while not absolutely dispositive of the question, satisfy me that the appellant is wrong when it says there is “no evidence” of the non-existence of collateral heirs in the maternal line.

While the judge did not weigh the evidence explicitly in his reasons, I am satisfied that, on the balance of probabilities, the respondents adduced sufficient evidence at trial to establish their “quality” as heirs in the proper rank under

article 635 C.C.L.C. to inherit the whole of the residue, to the exclusion of ordinary collaterals in the maternal line. I would not disturb the conclusion of the Superior Court on this point. [ 97 ] Accordingly, the judge was not mistaken in declining to divide the estate between ordinary collaterals of the paternal and maternal lines by reason of the fente successorale .

Article 634 C.C.L.C. does not apply here because the respondents have brought sufficient proof to show, on the balance of probabilities, that they are the sole ordinary collaterals of the late Mr Hughes. [ 98 ] Once it was ascertained, as a matter of evidence, that no ordinary collateral heirs in the maternal line existed, it was not necessary, strictly speaking, to consider the application of the fente . While the judge was not wrong in what he wrote on the principle of the unity of succession, the justification for excluding the division of the estate under

article 634 C.C.L.C. here is evidentiary. [ 99 ] But for the sake of clarity, I would add that the proposition that a division of the succession between the two family lines, pursuant to

article 634 C.C.L.C., should apply in the absence of a maternal heir, but based on the hypothesis that one exists and will come forward within the prescription period, is untenable in law. Not only does it run counter to the evidence, but this argument amounts to saying that one-half of the succession should not devolve to the sole ordinary collateral heirs. As the judge noted, this understanding of the division in

article 634 C.C.L.C. falls afoul of the principle that a succession forms a single legal universality. [24] This is elegantly expressed in the last portion of

article 614 C.C.Q.: all the property of a succession “constitutes a single patrimony / ne forment qu’un seul patrimoine”. This same principle is expressed differently, but no less clearly, in

article 599 C.C.L.C., which provides that the whole of the property of a succession forms “but one inheritance” (in French “une seule et unique hérédité”) which is transmitted and divided according to uniform rules. If the estate were to be divided between the two lines, even provisionally, in the absence of heirs in the maternal line, only one-half of the estate would be transmitted.

Article 635 C.C.L.C. precludes this, thereby carrying forward the principle of the unity of succession. [ 100 ] Once it has been decided that the fente did not apply, does the appellant have any further justification for withholding part of the estate? [ 101 ] To my mind, the appellant has failed to establish any basis for retaining the residue of the estate. In light of the evidence adduced at trial, the respondents have established their quality, as “right holders” under the Unclaimed Property Act and as “heirs” under

article 701, para. 2 C.C.Q., to inherit the sums remitted to the State after liquidation. Subject to a later claim in restitution, noted below, the property devolves to them alone, in equal shares, pursuant to

article 635 C.C.L.C. as the sole ordinary collaterals of the late Mr Hughes. IV.2 Did the judge err in holding that

article 627 C.C.Q. would provide heirs in the maternal line an adequate remedy against the respondents? [ 102 ] The appellant submits an alternative argument in the event that this Court confirms the judge’s decision to remit the whole of the residue to the respondents immediately.

In the appellant’s view, the judge erred in holding that an action in restitution would be an adequate remedy for potential claimants in the maternal line because, unlike the State, the respondents might be insolvent and unable to return the money to the rightful heirs. [ 103 ] The judge held that a restitutionary claim directed against the respondents would be adequate. Citing the Civil Code of Québec , he wrote: [19] One answer to this dilemma can be found at

article 627 C.C.Q., which provides that the apparent heir who receives something not due to him/her from the succession is bound to restore it. Therefore, in the event that heirs on the maternal side do come forward, they have a certain protection, albeit perhaps not as strong as if the state was still administering the maternal half of the succession. [ 104 ] In essence, the appellant argues that the remedy in restitution in

article 627 C.C.Q., while technically available, fails to offer a reliable protection for the heirs who may later come forward. In the event that the respondents become insolvent,

article 627 C.C.Q. would provide no guarantee that future claimants would be able to recover the share of the estate that is rightly theirs. The appellant fears it would be exposed in like circumstances to an action in civil liability for having imprudently remitted the whole of the estate prematurely to the respondents.

For this additional and subsidiary reason, and recalling the State’s duty to remit unclaimed property to its rightful owners, the appellant argues that it should be authorized to withhold 50% of the estate until the end of the prescription period for claims by heirs in the maternal line. [ 105 ] Before commenting further on this argument, it should be noted that the parties agree that, as a matter of transitional law,

article 627 C.C.Q. would apply to an action in restitution brought by late-coming heirs in the maternal line against the respondents, as apparent heirs. [25] Moreover, the appellant does not dispute that

article 627 would be an available remedy; it simply argues that it would be an inadequate one. [ 106 ] Is the appellant right to say that the risk of insolvency, or of a potential action in damages by would-be maternal heirs against the State, justifies withholding the property from the respondents? [ 107 ] In my view, there is no basis in law for the position taken by the appellant. This argument should be rejected.

[ 108 ] The appellant’s grounds for retaining the property are speculative at best: first, it is speculative that a legitimate heir exists and will come forward within the prescription period; and, second, it is speculative that, if this did happen, the respondents would be financially unable to answer an action in restitution brought under

article 627 C.C.Q. The alternative solution proposed by the appellant would be unfair to these legitimate heirs who have established, to the satisfaction of the trial judge and of this Court, that they are the only heirs of Mr Hughes and, as such, are presently entitled to the whole of the residue of the estate. [ 109 ] The appellant is not wrong to say that, if it commits a fault in the administration or transfer of unclaimed property that causes harm to a would-be heir successor, it exposes itself to an action in civil liability.

But where a legitimate heir comes forward and satisfies the burden of showing that he or she has the quality to inherit, as required by sections 30 and 31 of the Unclaimed Property Act and

article 701 C.C.Q., the appellant must remit the property claimed. When the burden has been met, there is no fault in acting on that duty. *** [ 110 ] Finally, the respondents ask for costs in both courts. [ 111 ] The judge exercised his discretion not to award costs in favour of the respondents and against the losing party at trial given what he characterized as the “unique nature of the question” before the Superior Court. [ 112 ] Most respectfully stated, I disagree with this decision.

While I recognize that trial judges have meaningful discretion on matters of costs, I am of the view that principle dictates that the Agence du revenu du Québec, as the losing party, pay costs at trial and legal costs on appeal.

Legitimate heirs who successfully defend their right of inheritance need not have to underwrite the hesitations of the Agence du revenu du Québec in the exercise of its powers under the Unclaimed Property Act and the Civil Code , especially in light of the State’s duty to facilitate the recovery of property by rightful owners. [ 113 ] In fairness to the judge, it is not clear to me that he was aware that the appellant was treating this matter as something of a test case.

In its inscription in appeal, the appellant wrote “[l]e jugement de la Cour supérieure a un impact sur plusieurs dossiers présentement traités par la Direction des biens non réclamés de la défenderesse”.

The judge was right to characterize some aspects of this file as “unique”, but in my respectful opinion it would be unfair to have the respondents finance the provincial authorities choice to test the question in the Superior Court, especially given the outcome of the test. [ 114 ] With the exception of ordering costs against the appellant at trial, I propose that the judgment of the Superior Court be confirmed and that the appeal be dismissed, with legal costs. NICHOLAS KASIRER, J.A.

Schedule I

Schedule II Principal codal and legislative provisions relied upon by the parties:

[1] Civil Code of Lower Canada 606. Les successions ab intestat sont déférées aux héritiers légitimes dans l’ordre réglé par la loi; à défaut de tels héritiers, elles sont dévolues au souverain. 606.

Abintestate successions pass to the lawful heirs in the order established by law; in default of such heirs they fall to the crown. 634. [Si le défunt, mort sans époux successible ni postérité, sans père ni mère, sans frères ni sœurs, ni neveux ni nièces au premier degré, laisse des ascendants dans une des lignes seulement, le plus proche de ces ascendants prend la moitié de la succession dont l’autre moitié est dévolue au plus proche parent collatéral de l’autre ligne.

Si, dans le même cas, il ne reste aucun ascendant, la succession entière se divise en deux parts égales dont l’une est dévolue au plus proche parent collatéral de la ligne paternelle, et l’autre au plus proche parent de la ligne maternelle.] Entre collatéraux, sauf le cas de la représentation, le plus proche exclut tous les autres; ceux qui sont au même degré partagent par tête. 634. [If the deceased, having left no consort capable of inheriting nor issue surviving, nor father, nor mother, nor brothers, nor sisters, nor nephews nor nieces in the first degree, leave ascendants in one line only, the nearest of such ascendants takes one half of the succession, the other half of which devolves to the nearest collateral relation of the other line.

If, in the same case, there be no ascendants, the whole succession is divided into two equal portions, one of which devolves to the nearest collateral relation of the paternal line, and the other to the nearest of the maternal line.] Among collaterals, saving the case of representation, the nearest excludes all the others; those who are in the same degree partake by heads. 635. Les parents au-delà du douzième degré ne succèdent pas. À défaut de parents au degré successible dans une ligne, les parents de l’autre ligne succèdent pour le tout . 635. Relations beyond the twelfth degree do not inherit.

In default of relations within the heritable degree in one line, the relations of the other line inherit the whole. 636. Lorsque le défunt ne laisse ni conjoint successible ni parent au degré successible, les biens de sa succession appartiennent au souverain. 636. When the deceased leaves no consort capable of inheriting nor relations within the heritable degree, his succession falls to the crown. 684.

Après l’expiration des délais pour faire inventaire et pour délibérer, s’il ne se présente personne qui réclame la succession, s’il n’y a pas d’héritiers connus, ou s’ils ont renoncé, cette succession est réputée vacante. 684. After the expiration of the delays for making the inventory and for deliberating, if no one come forward to claim a succession, if there be no known heirs, or if the known heirs have renounced, such succession is deemed vacant. 685. La déclaration de vacance d’une succession est demandée et obtenue de la manière prescrite au Code de procédure civile. 685.

A declaration that a succession is vacant is requested and obtained in the manner prescribed in the Code of Civil Procedure. 688. Les dispositions de la

section troisième du présent

chapitre sur la forme de l’inventaire, sur les avis à donner et sur les comptes à rendre de la part de l’héritier bénéficiaire, sont applicables, mutatis mutandis, au curateur public agissant comme curateur d’office aux successions vacantes. 688. The provisions of the third

section of this

chapter as to the form of the inventory, the notices to be given and the accounts to be rendered by beneficiary heirs, apply, mutatis mutandis, to the public curator acting as curator ex officio to vacant successions. [2] Civil Code of Québec 626. Le successible peut toujours faire reconnaître sa qualité d'héritier, dans les 10 ans qui suivent soit l'ouverture de la succession à laquelle il prétend avoir droit, soit le jour où son droit s'est ouvert. 626.

A successor is entitled to have his heirship recognized at any time within 10 years from the opening of the succession to which he claims to be entitled or from the day his right arises. 627. La reconnaissance de la qualité d'héritier au successible oblige l'héritier apparent à la restitution de ce qu'il a reçu sans droit de la succession, suivant les règles du livre Des obligations relatives à la restitution des prestations. 627.

An apparent heir is obliged, by the recognition of the heirship of the successor, to restore everything he has received from the succession without right, in accordance with the rules in the Book on Obligations relating to restitution of prestations.

696. Lorsque le défunt ne laisse ni conjoint ni parents au degré successible, ou que tous les successibles ont renoncé à la succession ou qu'aucun successible n'est connu ou ne la réclame, l'État recueille, de plein droit, les biens de la succession qui sont situés au Québec. Est sans effet la disposition testamentaire qui, sans régler la dévolution des biens, vient faire échec à ce droit. 696.

Where the deceased leaves no spouse or relatives within the degrees of succession, or where all the successors have renounced the succession, or where no successor is known or claims the succession, the State takes, by operation of law, the property of the succession situated in Québec. Any testamentary provision which would defeat this right without otherwise providing for the devolution of the property is without effect. 697.

L'État n'est pas un héritier; il est néanmoins saisi, comme un héritier, des biens du défunt, dès que tous les successibles connus ont renoncé à la succession ou six mois après le décès, lorsque aucun successible n'est connu ou ne réclame la succession. Il n'est pas tenu des obligations du défunt au-delà de la valeur des biens qu'il recueille. 697. The State is not an heir, but is nonetheless seized of the property bequeathed, as is an heir, once all known successors have renounced the succession, or, where no successor is known or claims the succession, six months after the death.

It is not liable for obligations of the deceased in excess of the value of the property it takes. 698. La saisine de l'État à l'égard d'une succession qui lui est échue est exercée par le ministre du Revenu. Tant qu'ils demeurent confiés à l'administration du ministre du Revenu, les biens de la succession ne sont pas confondus avec les biens de l'État. 698. Seisin of a succession which falls to the State is exercised by the Minister of Revenue. No property of a succession may be mingled with the property of the State so long as it remains under the administration of the Minister of Revenue.

Sous réserve de la Loi sur les biens non réclamés (chapitre B-5.1 ) et sans autre formalité, le ministre du Revenu agit comme liquidateur de la succession. Il est tenu de faire inventaire et de donner avis de la saisine de l'État à la Gazette officielle du Québec ; il doit également faire publier l'avis dans un journal distribué dans la localité où était établi le domicile du défunt. 699. Subject to the Unclaimed Property Act (chapter B-5.1 ) and without any other formality, the Minister of Revenue acts as liquidator of the succession.

He is bound to make an inventory and give notice of the seisin of the State in the Gazette officielle du Québec ; he shall also cause the notice to be published in a newspaper circulated in the locality where the deceased was domiciled. 700. À la fin de la liquidation, le ministre du Revenu rend compte au ministre des Finances. Il donne et publie un avis de la fin de la liquidation, de la même manière que s'il s'agissait d'un avis de la saisine de l'État; il indique, à l'avis, le reliquat de la succession et le délai pendant lequel tout successible peut faire valoir ses droits d'héritier. 701.

Le ministre du Revenu, au moment où il rend compte, remet au ministre des Finances les sommes constituant le reliquat de la succession, qui sont alors acquises à l'État. Tout héritier qui établit sa qualité peut néanmoins, dans les 10 ans qui suivent soit l'ouverture de la succession, soit le jour où son droit s'est ouvert, récupérer ces sommes auprès du ministre du Revenu avec les intérêts, capitalisés quotidiennement et calculés depuis la remise de ces sommes au ministre des Finances au taux fixé en application du deuxième alinéa de l'

article 28 de la

Loi sur l'administration fiscale (chapitre A-6.002 ). 700. At the end of the liquidation, the Minister of Revenue renders an account to the Minister of Finance. The Minister of Revenue gives and publishes a notice of the end of the liquidation in the same manner as for a notice of seisin of the State. He indicates in the notice the residue of the succession and the time granted to successors to assert their rights of heirship. 701.

The Minister of Revenue, upon rendering account, transfers to the Minister of Finance the amounts constituting the residue of the succession, which then become the property of the State. Heirs who establish their quality may, however, within 10 years from the opening of the succession or from the day their right arises, recover those amounts from the Minister of Revenue with interest capitalized daily and calculated from the time the amounts were transferred to the Minister of Finance, at the rate set under the second paragraph of

section 28 of the Tax Administration Act (chapter A-6.002 ).

776. La liquidation de la succession ab intestat ou testamentaire consiste à identifier et à appeler les successibles, à déterminer le contenu de la succession, à recouvrer les créances, à payer les dettes de la succession, qu'il s'agisse des dettes du défunt, des charges de la succession ou des dettes alimentaires, à payer les legs particuliers, à rendre compte et à faire la délivrance des biens. 776.

The liquidation of an intestate or testate succession consists in identifying and calling in the successors, determining the content of the succession, recovering the claims, paying the debts of the succession, whether these be debts of the deceased, charges on the succession or debts of support, paying the legacies by particular title, rendering an account and delivering the property. [3] Unclaimed Property Act , CQLR c B-5.1 1.

La présente loi a pour objet de favoriser la récupération par leurs ayants droit des biens non réclamés et d'assurer la remise à l'État des biens sans maître ou dont les ayants droit demeurent inconnus ou introuvables. Elle prévoit les règles régissant l'administration provisoire de ces biens. 1. The purpose of this Act is to facilitate the recovery of unclaimed property by right-holders and to ensure that property without an owner or property in respect of which the right-holders remain unknown or untraceable is delivered to the State.

The Act also sets out the rules governing provisional administration of that property. 2.

Outre les biens dont l'administration lui est par ailleurs confiée en vertu de la loi, le ministre du Revenu est administrateur provisoire des biens suivants: […] 4°les biens d'une succession qui sont situés au Québec, jusqu'à ce que les héritiers ou un tiers, désigné conformément aux dispositions testamentaires du défunt ou par le tribunal, soient en mesure d'exercer la charge de liquidateur de la succession ou jusqu'à ce que le ministre, notamment dans les cas où l'État est saisi de ces biens, soit habilité à agir à ce titre; 2.

In addition to property otherwise entrusted by law to the administration of the Minister of Revenue, the Minister of Revenue is the provisional administrator of […] (4) property belonging to a succession and situated in Québec, until the heirs, or a third person designated in accordance with the testamentary provisions made by the deceased or designated by the court, are able to discharge the office of liquidator of the succession or until the Minister, in particular in cases where the State is seized of the property, is empowered to act in that capacity; 15.

Le ministre a la simple administration des biens qui sont confiés à son administration, à moins que la loi ne le prévoie autrement. Il n'est toutefois pas tenu de conserver ces biens en nature. 15. The Minister has the simple administration of the property entrusted to the Minister's administration, unless the law provides otherwise.

The Minister is not, however, required to preserve the property in kind. 28. […] 4° en l'absence d'un bénéficiaire de l'administration et dans tous les cas où les biens sont administrés pour le compte de l'État, lorsque la liquidation des biens par le ministre prend fin et que les opérations permettant d'assurer la remise des sommes administrées ou provenant de cette liquidation sont complétées. 28. […] (4) in the absence of any beneficiary of the administration and in all cases where the property is administered on behalf of the State, once the Minister's liquidation of the property has ended and all operations for the delivery of the administered sums of money and of those deriving from the liquidation have been completed.

29. Le ministre doit, à la fin de son administration, rendre compte de celle-ci et remettre les biens à ceux qui y ont droit. Lorsque l'administration se termine dans les conditions prévues au paragraphe 4° de l'

article 28 , la reddition de compte et la remise des sommes qui restent à la fin de l'administration sont faites au ministre des Finances. Le gouvernement peut, par règlement, déterminer la forme et le contenu de la reddition de compte que doit faire le ministre en vertu du présent article, de même que les modalités de remise des sommes visées au deuxième alinéa. 29. On the termination of administration, the Minister must render an account of the administration and deliver the property to the right-holders concerned. If the administration terminates in circumstances described in paragraph 4 of

section 28 , the account is to be rendered, and the sums of money remaining are to be delivered, to the Minister of Finance. The Government may, by regulation, determine the form and content of the account to be rendered by the Minister under this section, as well as the terms for the delivery of the sums of money referred to in the second paragraph. 30. Les sommes remises au ministre des Finances sont acquises à l'État.

Tout ayant droit aux sommes ainsi remises, y compris aux biens dont la liquidation a produit ces sommes, peut néanmoins les récupérer auprès du ministre, avec les intérêts, capitalisés quotidiennement et calculés depuis cette remise au taux fixé en application du deuxième alinéa de l'

article 28 de la

Loi sur l'administration fiscale (chapitre A-6.002 ).

Sous réserve des dispositions du Code civil relatives à la pétition d'hérédité, ce droit est imprescriptible, sauf à l'égard des sommes dont le montant est inférieur à 500 $ au moment de leur remise au ministre des Finances, où le droit de les récupérer se prescrit par 10 ans à compter de cette remise. […] 30. All sums of money delivered to the Minister of Finance become property of the State. Any right-holder with respect to sums of money so delivered, or with respect to the property from whose liquidation such sums derive, may recover the sums from the Minister, with interest capitalized daily and calculated from the date of delivery, at the rate set under the second paragraph of

section 28 of the Tax Administration Act (chapter A-6.002 ). Subject to the provisions of the Civil Code relating to the petition of inheritance, the right of recovery is not subject to prescription, except where it relates to a sum of money amounting to less than $500 at the time of its delivery to the Minister of Finance, in which case the right to recovery is prescribed 10 years after the date of delivery. […] 31. Il appartient à celui qui réclame un bien ou qui veut récupérer une somme auprès du ministre d'établir sa qualité. 31. It is incumbent upon persons who claim property or want to recover a sum of money from the Minister to establish their quality.