2024 QCCA 84, 2024 QCCA 84

Succession de Spiric 2024 QCCA 84 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-030295-224 (700-17-017884-213) DATE: January 25, 2024 CORAM: THE HONOURABLE MARTIN VAUCLAIR, J.A. BENOÎT MOORE, J.A. ÉRIC HARDY, J.A. IN THE MATTER OF THE ESTATE OF SLOBODAN SPIRIC: BARBARA MAE BROWN TRAILL APPELLANT – Plaintiff v.

NICOLAS SPIRIC SCOTIA GESTION DE PATRIMOINE RESPONDENTS – Defendants and PROCUREUR GÉNÉRAL DU QUÉBEC IMPLEADED PARTY – Impleaded party JUDGMENT [ 1 ] The Appellant appeals from a judgment rendered on October 21, 2022, by the Superior Court, District of Terrebonne (the Honourable Justice Annie Breault) that declared valid and enforceable a will signed in Costa Rica (“Costa Rican Will”), on February 14, 2020, by the late Slobodan Spiric (“Deceased”) before Notary Public Carlos Fernando Cubero Rojas and that confirmed the revocation of the Deceased’s previous will signed in Quebec (“Quebec Will”), on February 15, 2016, before Notary Carole Forget. [1] [ 2 ] At the time of the Deceased’s death, he and the Appellant had been in a de facto union for the past twenty years.

Indeed, the Appellant was designated as the liquidator and sole heir of the estate of the Deceased under the Quebec Will. [ 3 ] The Respondent is the Deceased’s only son. He is the liquidator and sole heir of the estate of the Deceased under the Costa Rican Will that was drafted in Spanish. [ 4 ] The Appellant challenged the validity of the Costa Rican Will on the main ground that the Deceased did not speak Spanish or that his command of Spanish was not sufficient for him to make a will in that language.

She also argued that the formalities for a Costa Rican will to be valid were not complied with, as Public Notary Rojas evidently failed to ascertain that the Deceased had a sufficient understanding of Spanish. Otherwise, he surely would have retained the services of an interpreter to assist the Deceased in ensuring the Costa Rican Will accurately reflected the expression of his last wishes. [2] [ 5 ] Expert evidence on Costa Rican law was adduced by both parties.

Expert Morgan Asch opined in favour of the validity of the Costa Rican Will while Expert Gutiérrez Contreras came to the contrary conclusion. [3] [ 6 ] At the beginning of her analysis, the trial judge noted that the Deceased’s capacity to make a will was not contested nor was the Superior Court of Québec’s jurisdiction to rule on the validity of the Costa Rican Will. [4] All she had to decide was whether the Costa Rican Will had been made according to the applicable formalities and whether the circumstances surrounding its signature called into question the fact that it is really an expression of the Deceased’s last wishes. [5] [ 7 ] The trial judge underlined that according to the first paragraph of art. 3109 C.C.Q ., “[t]he form of a judicial act is governed by the law of the place where it is entered into” adding that pursuant to its third paragraph, “[a] testamentary provision may also be made in the form prescribed by the law of the domicile or nationality of the testator either at the time he made the disposition or at the time of his death”. [6] [ 8 ] The Appellant objected to the introduction in evidence of the Costa Rican Will. [7] [ 9 ] The trial judge ruled in favour of the Respondent. [ 10 ] She found that proof of the Costa Rican Will,

an act purporting to be issued by a competent foreign public officer, could be made

by its mere filing in the Court record unless the presumption of semi-authenticity attached to it by virtue of art 2822 C.C.Q . was rebutted. [8] On this issue, she concluded that the Appellant failed to put forward facts justifying the setting aside of such presumption. [9] [ 11 ] As to the central live issue, i.e., the Deceased’s understanding of the Spanish language, the trial judged ruled that the onus was on the Appellant to prove that the Deceased’s understanding was not sufficient to make a will in Spanish. [10] On this, she found that documentary evidence, including the resume that the Deceased had prepared while he was in the employ of SNC-Lavalin, attests to the fact that his understanding of Spanish was sufficient for him to make a will in that language. [11] [ 12 ] As to the formalities under Costa Rican law for a notarial will to be valid, the trial judge found that the Appellant had failed to demonstrate that they had not been entirely complied with.

In that regard, the opinion of Expert Morgan Asch was preferred over that of Expert Gutiérrez Contreras. Among other things, the trial judge found that the presence of an interpreter was not warranted. [12] [ 13 ] The Appellant raises three grounds for appeal. [ 14 ] Firstly, the trial judge would have incorrectly applied the presumption of authenticity over

an act issued by a foreign public officer notwithstanding the fact that it was contested pursuant to art. 2825 C.C.Q . The Appellant argues that the mere contestation of such

an act suffices to destroy the presumption of authenticity attached to it under art. 2822 C.C.Q .

According to the Appellant, the trial judge’s failure to consider that the contestation of the Costa Rican Will had such an effect was tantamount to shifting onto her the burden of proving that it was invalid whereas the burden to establish its authenticity should have been on the Respondent in the first place. [ 15 ] This is not the state of the law on this point. [ 16 ] The presumption of authenticity provided by art. 2822 C.C.Q. is indeed one that is rebuttable provided the contestation is made on serious legal grounds (“ motifs juridiques sérieux ”) as the Court decided in Droit de la famille — 192151 [13] : “[l]a contestation des actes semi - authentiques doit reposer sur des motifs juridiques sérieux”, adding that “ la simple allégation de l’invalidité de l’acte est insuffisante en soi pour combattre le caractère probant de son authenticité”. [ 17 ] The trial judge held that no such legal grounds had been established to her satisfaction.

Hence, the presumption was never rebutted. Absent a palpable and overriding error, the Court must refrain from interfering with the trial judge’s findings regarding the insufficiency of evidence. [14] As the Court finds that the Impugned Judgment contains no such error, this first ground of appeal must fail. [ 18 ] As a second ground for appeal, the Appellant argues that the Costa Rican Will is invalid as it did not comply with the requirements of art. 717 C.C.Q. This would be so since it contains

i) no clause indicating that Notary Rojas spoke French or English nor that he was assisted by an interpreter, and ii) no clause by which the Deceased declares, after the Will was read to him, that the Will is the true expression of his last wishes. [ 19 ] This second ground must also fail. [ 20 ] According to the first paragraph of art. 3109 C.C.Q ., “[t]he form of a juridical act is governed by the law of the place where it is entered into”, i.e., Costa Rica. Hence, art. 717 C.C.Q . is irrelevant.

Based on the expert evidence she heard, the trial judge came to the conclusion that the Costa Rican Will was valid under this country’s laws. The Appellant has failed to demonstrate the existence of a palpable and overriding error that would justify the Court putting aside such conclusion. [ 21 ] Furthermore, the Deceased’s fluency in Spanish is at the core of this ground for appeal. Rightly so, the trial judge decided that the onus was on the Appellant to prove that the Deceased’s command of the Spanish language was not sufficient to enable him to make a will drafted in that language.

Also, she concluded from the documentary evidence that the Deceased had a sufficient understanding of the Spanish language for that purpose. The Court finds that she committed no reviewable error in reaching this conclusion. [ 22 ] As to the third ground of appeal, it is two-fold. First, the Appellant claims that the Costa Rican Will is vitiated by the fact that it does not indicate the true civil status of the Deceased, i.e., that of a common-law spouse. Second, the Appellant argues that the trial judge made a reviewable error in setting aside s. 242 of the Family Code of Costa Rica which provides that: 242.

The public, well-known, exclusive and stable de facto union, for more than three years, shall have all the patrimonial effects of a legally formalized marriage, upon its termination for any reason. [ 23 ] The Appellant fails to bring to the attention of the Court any evidence adduced at the trial indicating that this provision was, in practice, a limitation on the power of the Deceased to dispose of his goods in his Costa Rican Will as he wished.

Indeed, this is neither what Expert Morgan Asch has testified nor what Expert Gutiérrez wrote in his report: 2.8 If the translation of the will had been done in accordance with the legal requirements, the testator would have understood that his partner Barbara Mae Brown was being excluded, which would have given him the opportunity to demand the correction of the will to make the correct statement of their relationship according to law. ln Costa Rica,

article 242 of the Family Code of Costa Rica recognizes to all spouses the right and legal benefit lo a legally formalized marriage if the union is public, well-known, exclusive, stable, and lasts for more than three-years (see annex F), giving the spouse a right of the assets acquired durain [sic] their relationship. [ 24 ] In addition, this argument is made under the false premise that the Deceased did not understand Spanish.

Also, nothing in the evidence indicates that the Appellant and the Deceased were covered by Costa Rican law regarding common-law spouses. [ 25 ] Finally, and as the Respondent properly conceded at the hearing, the Court wishes to emphasize that the sole object of the Impugned Judgement is to validate the Costa Rican Will and declare it enforceable. Hence, there is nothing preventing the Appellant from making a claim against the estate of the Deceased to assert her rights, if any, under s. 242 of the Family Code of Costa Rica.

FOR THESE REASONS, THE COURT: [ 26 ] DISMISSES the appeal, with legal costs. MARTIN VAUCLAIR, J.A. BENOÎT MOORE, J.A. ÉRIC HARDY, J.A. Mtre Simon Lahaie LAHAIE AVOCAT For the Appellant Mtre Lauren Flam Mtre Xavier Morand Bock ROBINSON SHEPPARD SHAPIRO LLP For the Respondent Nicolas Spiric Mtre Souhail Nejjar MILLER THOMSON LLP For the Respondent Scotia Gestion de patrimoine Date of hearing: January 17, 2024