2021 QCCA 1984, 2021 QCCA 1984

Damary c. Bitton 2022 QCCA 349 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029807-211 ( 500-14-059084-202 ) (500-17-114617-205 ) MINUTES OF THE HEARING DATE: February 25, 2022 CORAM: THE HONOURABLE ROBERT M. MAINVILLE, J.C.A. SOPHIE LAVALLÉE, J.C.A. PETER KALICHMAN, J.C.A.

IN THE MATTER OF THE ESTATE OF THE LATE SAMY BITTON: No: 500-09-029807-211 (500-14-059084-202) APPELLANT COUNSEL DANIELLA DAMARY Mtre ALAIN LANCRY Mtre FADY GIRGIS ( Devine Schachter Polak ) By videoconference RESPONDENT COUNSEL DVIR BITTON Mtre ROBERT PANCER ( Phillips Friedman Kotler ) By videoconference IMPLEADED PARTIES JEAN-FRANÇOIS MILOT SNIR BITTON NERLY BITTON ABSENT AND UNREPRESENTED IN THE MATTER OF THE INJUNCTION PROCEEDINGS: No: 500-09-029807-211 (500-17-114617-205) APPELLANT COUNSEL

DANIELLA DAMARY Mtre ALAIN LANCRY Mtre FADY GIRGIS ( Devine Schachter Polak ) By videoconference RESPONDENT COUNSEL DVIR BITTON Mtre ROBERT PANCER ( Phillips Friedman Kotler ) By videoconference IMPLEADED PARTIES COUNSEL THE ESTATE OF THE LATE SAMY BITTON, c/o DVIR BITTON, in his capacity as Provisional Liquidator Mtre ROBERT PANCER ( Phillips Friedman Kotler ) By videoconference SAMPRÊT PLUS INC. jacques znaty ABSENT AND UNREPRESENTED On appeal from a judgment rendered on November 1 st , 2021 by the Honourable Serge Gaudet of the Superior Court , District of Montreal .

DESCRIPTION: Application to dismiss an appeal (Article 365 C.C.P .). Clerk: Ariane Simard-Trudel Courtroom: Pierre-Basile-Mignault HEARING 9:33 Commencement of the hearing. Continuation of the hearing held on February 21, 2022. The parties were excused from appearing in Court. BY THE COURT : Judgment – see page 4. Conclusion of the hearing. Ariane Simard-Trudel, Clerk

JUDGMENT [ 1 ] In the judgment on appeal, the judge denies the Appellant’s application to probate her husband’s March, 2020 will and instead grants the application to probate an earlier will dated February 28, 1989. [ 2 ] The principal ground of appeal raised by the Appellant is that the judge erred in failing to properly apply

Article 714 of the Civil Code of Quebec (the CCQ ). [ 3 ] The Respondent seeks the dismissal of the appeal on the basis that it has no reasonable chance of succeeding. * * * [ 4 ] The Late Samy Bitton had three children from a first marriage, the Respondent, Dvir and the Impleaded Parties, Snir and Nerly. [ 5 ] He signed a last will and testament in 1989 (the 1989 Will ). [ 6 ] Mr. Bitton married the Appellant, Daniella Damary, in 2013. [ 7 ] In March, 2020, while in hospital due to complications resulting from Covid-19, Mr. Bitton contacted Me Jacques Znaty (the Notary ) to prepare a new notarial will.

He provided details of what was to be included in the will in an email dated March 28, 2020. He ended his email to the Notary with the following words: J’espère que tu va [s] pouvoir me faire signer Même si non ceci est ma signature [ 8 ] After speaking to Mr. Bitton the following day, the Notary prepared a new draft notarial will and sent it to him by email. Unfortunately, they never spoke again. Shortly after the phone call, Mr. Bitton’s condition deteriorated and he was unable to communicate with the Notary. He died on October 6, 2020.

The draft will prepared by the Notary was never signed. [ 9 ] The Respondent presented an application to probate the 1989 Will. This request was contested by the Appellant. She argued that the March 28, 2020 email represented Mr.

Bitton’s last wishes and that it met the requirements for probate. [ 10 ] The judge concluded that the March 28, 2020 email to the Notary was not a valid will and that there was no reason not to probate the 1989 Will, the legal formalities of which had all been established. * * * [ 11 ] According to the Applicant, the judge committed numerous errors in failing to recognize that under the circumstances, the March 28, 2020 e-mail from Mr. Bitton to the Notary met the requirements to be considered a valid will in accordance with

Article 714 CCQ. More specifically, she argues that the judge erred in: ➢ Failing to recognize that the words « ceci est ma signature » constitute a valid signature; ➢ Concluding that witnesses needed to be physically present while the testator is preparing or signing the will; and ➢ Concluding that a witness is required to sign the will at the same time as the testator. [ 12 ] The judge recognized that

Article 714 CCQ affords certain discretion to temper the formalities governing the formation of a will but determined that to do so in this case would require that he cast aside those formalities altogether. He arrived at this result after a rigorous analysis in which he canvassed numerous authorities and concluded that the March 28, 2020 email could not be considered to have been signed by Mr.

Bitton and was not prepared before witnesses. [ 13 ] There is no doubt that restrictions imposed as a result of the Covid-19 pandemic create unique challenges in regards to the formalities that must be respected in order for a will to be considered valid. The Appellant may well be correct in arguing that these challenges as well as advances in technology, may one day require the courts to reconsider the circumstances in which

Article 714 CCQ may be applied. However, she has failed to convince the Court that such a reconsideration is warranted in this case. On the contrary, it would appear that the judge correctly applied the law in its current state, to a situation that, while tragic, was not altogether unique. [ 14 ] The Court thus concludes that the appeal presents no reasonable chance of success. FOR THESE REASONS, THE COURT : [ 15 ] GRANTS the Application to dismiss an appeal, with legal costs.

[ 16 ] DISMISSES the appeal, with legal costs. ROBERT M. MAINVILLE, J.C.A. SOPHIE LAVALLÉE, J.C.A. PETER KALICHMAN, J.C.A.