2021 QCCA 260, 2021 QCCA 260

Succession de Glickman 2021 QCCA 260 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-028238-194 (500-17-102997-189) DATE: 16 février 2021 CORAM: THE HONOURABLE ROBERT M. MAINVILLE, J.A. JOCELYN F. RANCOURT, J.A. LUCIE FOURNIER, J.A. IN THE MATTER OF THE SUCCESSION OF THE LATE JOAN MARJORY GLICKMAN (ABRAMS): RACHEL HORST , in her capacity as liquidator of the estate of the late Richard Abrams APPELLANT – Defendant v.

THE SUCCESSION OF THE LATE JOAN MARJORY GLICKMAN, as represented by: LUCY ABRAMS , in her capacity as co-liquidator and beneficiary of the succession of the late Joan Marjory Glickman RAYMONDE LAMARRE , in her capacity as co-liquidator and beneficiary of the succession of the late Joan Marjory Glickman HOWARD L.

TATNER , in his capacity as co-liquidator and beneficiary of the succession of the late Joan Marjory Glickman RESPONDENTS – Plaintiffs and JANE ABRAMS (KATZ) , in her capacity as a beneficiary of the succession of the late Joan Marjory Glickman LUCY ABRAMS , in her capacity as a beneficiary of the succession of the late Joan Marjory Glickman RESPONDENTS – Defendants JUDGMENT [ 1 ] Rachel Horst, in her capacity as liquidator of the estate of the late Richard Abrams, appeals the March 22, 2019 judgment of the Superior Court, District of Montreal (Honourable Madam Justice Marie-France Courville), granting the application of the respondents, the liquidators of the succession of the late Joan Marjory Glickman, with respect to the distribution of the remaining capital held in that succession. [ 2 ] For the reasons of Mainville, J.A., with which Rancourt and Fournier, JJ.A. concur, THE COURT: [ 3 ] DISMISSES the appeal, with legal costs on appeal only.

ROBERT M. MAINVILLE, J.A. JOCELYN F. RANCOURT, J.A. LUCIE FOURNIER, J.A.

Mtre Fredric Stewart Liverman CABINET GELBER LIVERMAN For Appellant Mtre Antonio Iacovelli MILLER THOMSON For Lucy Abrams, Raymonde Lamarre and Howard L. Tatner Date of hearing: January 26, 2021 REASONS OF MAINVILLE, J.A. [ 4 ] The appellant Rachel Horst is the liquidator of the estate of the late Richard Abrams.

She appeals the March 22, 2019 judgment rendered by the Honourable Madam Justice Marie-France Courville of the Quebec Superior Court, District of Montreal ( 2019 QCCS 1130 ), granting the application of the co-liquidators of the succession of the Late Joan Marjory Glickman and issuing various judicial declarations, notably a declaration that the remaining capital held in that succession accrues to the benefit of the respondents Lucy Abrams and Jane Abram Katz, equally and in trust. THE CONTEXT [ 5 ] Joan Marjory Glickman (the “Testator”) signed a notarized will on November 21, 1994 (the “Will”).

In its essence, the Will is quite simple and straightforward. It provides that the bulk of her property is to be bequeathed to her husband upon her death or, should her husband predecease her, it is to be bequeathed in equal shares to her three children, Jane Abrams, Lucy Abrams and Richard Abrams. The Will also provides that should any of the children predecease the Testator “or die before receiving their full share of the capital”, then that share accrues to her other children if the deceased child leaves no living child of his or her own. [ 6 ]

Article Fourth of the Will provides as follows: FOURTH As to the rest, residue and remainder of my Estate and Succession, property real and personal, moveable and immoveable, rights and actions to me in any wise belonging at the time of my death, and including any and all life insurance policies or benefit certificates on my life of which I am the owner and of which I may have the right to appropriate and apportion, and including any and all pensions, Registered Retirement Income Funds, etc., I hereby will, devise and bequeath, appropriate and apportion, the whole, in absolute ownership to my dear husband, Alec ABRAMS.

Should my said husband predecease me or die within ninety (90) days of my death, in which event he shall be deemed to have predeceased me, then, in such event, I hereby will, devise and bequeath, the said rest, residue and remainder of my Estate and Succession to my dear children in the first degree, namely, Jane, Lucy and Richard, equally, share and share alike.

Should any of my said children in the first degree herein named predecease me or die before receiving their full share of the capital and leave no lawful issue surviving, which shall include any adopted child or children, then the share of the said deceased child shall accrue to the survivor(s); and should any of my said children in the first degree herein named predecease me or die before receiving their full share of the capital and leave lawful issue surviving, which shall include any adopted child or children, then such lawful issue shall represent their deceased parent by roots and not by heads and any beneficiary thus representing such deceased child shall receive his or her respective share in the capital upon respectively attaining the full age of twenty-one (21) years; and until such time, the same shall be held in trust by my Liquidators who shall invest the same for the benefit of such issue and shall expend the income derived therefrom or such sum or sums of money as may be necessary for the maintenance, education and support of such beneficiary, and upon the occasion of such beneficiary attaining the full age of twenty-one (21) years, he or she shall receive his or her share of the capital. (…) [ 7 ] Joan Marjory Glickman died in Montreal on May 2, 2013.

Since her spouse, Alec Abrams, had predeceased her on April 18, 2006, under the terms of the Will her succession devolved in equal shares to her three children. [ 8 ] It took some time to settle the succession. Between May 3, 2013, and October 30, 2015, the children received partial distributions of $700,000 each. The final distribution of the remaining assets of the succession, amounting to approximately $2,000,000, was to be made following a planned final accounting. The agreed final distribution was to be $664,874 for each child.

Unfortunately, before the final distribution was effected, Richard Abrams died in Vancouver on December 10, 2017. [ 9 ] Richard Abrams died without any living child. His own will divided his estate between various friends and relatives. It is not disputed that the bulk of Richard Abrams’ estate devolves to non-family members.

This event raised the question of whether the final distribution of the remainder of the Testator’s succession should be divided equally between her two remaining surviving children, Lucy Abrams and Jane Abrams, or, rather, if the estate of the late Richard Abrams is entitled to participate in the final distribution. That was the question submitted to the Superior Court.

THE SUPERIOR COURT JUDGMENT [ 10 ] The Superior Court judge concluded that the Will was ambiguous and required

interpretation. [1] She inferred from the fact that the late husband was explicitly given rights to inherit “in absolute ownership” and from the absence of these words with respect to the children, that the intent in the Will was that the legacy to the children was not to be an unfettered and absolute transmission. [2] The Will contained a provision which anticipated the situation in which one or more of the children could die before receiving their full share of the capital. [ 11 ] According to the judge, “[t]he way to give effect to the Clause […] is to infer that Mother created a trust or trusts to benefit her children with the rest, residue and remainder of her succession which Father was unable to inherit.” [3] The judge referred to a number of examples of language throughout the Will that are indicative of the creation of a trust. [4] For example,

Article Fifth uses trust language: “[i]n respect of any portion of my Estate accruing for a different beneficiary, a separate trust shall be deemed to apply thereto.” Similarly,

Article Eleventh suggests trusts by stipulating that “the shares of all legatees, whether in capital or revenue, shall not be capable of being anticipated or assigned whilst in the hands of my liquidators.” Finally,

Article Sixteenth also suggests trusts by stipulating that “liquidators shall be deemed to also mean testamentary Executors and Trustees.” [ 12 ] The judge further concluded from

Article Eleventh of the Will that the Testator clearly intended to keep the devolution of her property within her own family, which is a serious and legitimate interest. [5]

Article Eleventh provides that the bequests and revenues derived therefrom do not form part of any community of property or partnership of acquests. Given this, the judge concluded that the “[m]other did not want non-family members inheriting any portion of her succession that a childless beneficiary had not received from her liquidators and trustees during his lifetime.” [6] This, according to the judge, went against devolving Richard Abrams’s share to his own heirs who, for the most part, are not members of the Testator’s family. [7] [ 13 ] Finally, the judge distinguished Warhaft v .

Warhaft (Estate of) [8] (“ Warhaft ”) on the ground that no trust language could be found in the will at issue in that case, contrary to the Will at issue here. [9] [ 14 ] In conclusion, the judge found that the intent behind the language of the Will was that the Testator’s bequests to her children are to be held in trust by the liquidators. [10] Accordingly, she issued a number of declarations, the net effect of which was to ensure that the remaining capital of the succession is to be equally shared between the Testator’s remaining children, Jane Abrams and Lucy Abrams.

THE ISSUES RAISED IN APPEAL [ 15 ] There is no dispute between the parties with respect to the amount of $700,000 distributed to Richard Abrams prior to his demise. The dispute solely concerns the participation of his estate in the final distribution of the Testator’s succession. [ 16 ] The appellant principally submits that, by operation of law, the absolute ownership of Richard Abrams’ entire share of his mother’s succession accrued to him upon her death.

This is the cornerstone of the appellant’s argument that Richard Abrams’ estate is entitled to participate in the final distribution. [ 17 ] The appellant further argues that the provisions of

Article Fourth of the Will which would lead to Richard Abrams’s share of his mother’s succession accruing to his sisters go against public order, are inconsistent with basic laws governing successions, and should be deemed unwritten pursuant to

article 757 of the Civil Code of Québec (“ C.C.Q. ”). At the hearing, the appellant added that should the impugned provisions nevertheless be deemed valid, then they should be found inapplicable or inoperative with respect to the amounts still held for distribution by the liquidators. [ 18 ] The appellant adds that the judge attempted to avoid dealing with the invalidity of the impugned provisions of

Article Fourth of the Will by concluding that the ownership of the Testator’s estate flowed to trusts for the benefit of each of the Testator’s children. The appellant argues that

Article Fourth does not create any such trust and, even if it does, this would not remedy the invalidity, inapplicability or inoperativeness of the impugned provisions. [ 19 ] As a result, the appellant submits that the estate of the late Richard Abrams is entitled to participate in the final distribution resulting from the Testator’s succession. ANALYSIS [ 20 ] Contrary to the position expressed by the trial judge, I am firmly of the view that the pertinent terms of the Will are clear and are in no need of

interpretation. [11] The Testator’s intent is evident: should any of her children die with no living issue before receiving their full share of her succession, then that share accrues to her other surviving children. The bequest to Richard Abrams is thus subject to that condition. The main issue in appeal is therefore whether that condition is valid and operative.

I conclude that it is, without any need to reference trust concepts. [ 21 ] The appellant is correct in stating that under the civil law applicable in Quebec, the heir’s right to the succession follows immediately, by operation of law, from the death of the person from whom he or she inherits. This flows from articles 619, 645 and 738 C.C.Q. [12] [ 22 ] However, that right may itself be subject to a condition set out in a will. Therefore, a legacy may lapse if the legatee dies before the fulfilment of the suspensive condition attached to it, if the condition is of a purely personal nature.

This is specifically provided for in articles 747 and 750 C.C.Q. : [13] BOOK THREE SUCCESSIONS LIVRE TROISIÈME DES SUCCESSIONS

TITLE FOUR WILLS

TITRE QUATRIÈME DES TESTAMENTS

CHAPTER IV TESTAMENTARY PROVISIONS AND LEGATEES

CHAPITRE QUATRIÈME DES DISPOSITIONS TESTAMENTAIRES ET DES LÉGATAIRES DIVISION III THE EFFECT OF LEGACIES

SECTION III DE L’EFFET DES LEGS 747. Where the payment of a legacy is subject to a term, the legatee nevertheless has an acquired right from the death of the testator which is transmissible to his own heirs or legatees by particular title. 747. Lorsque le paiement du legs est soumis à un terme, le légataire a, néanmoins, un droit acquis dès le décès du testateur et transmissible à ses propres héritiers ou légataires particuliers. The right of the legatee to a legacy made under a condition is also transmissible unless the condition is of a purely personal nature .

Son droit au legs fait sous condition est également transmissible, sauf si la condition a un caractère purement personnel . DIVISION IV LAPSE AND NULLITY OF LEGACIES

SECTION IV DE LA CADUCITÉ ET DE LA NULLITÉ DES LEGS 750. A legacy lapses when the legatee does not survive the testator, except where there may be representation. 750. Le legs est caduc, sauf s’il y a lieu à représentation, lorsque le légataire n’a pas survécu au testateur. A legacy also lapses where the legatee refuses it, is unworthy to receive it or dies before the fulfilment of the suspensive condition attached to it, if the condition is of a purely personal nature.

Il est aussi caduc lorsque le légataire le refuse, est indigne de le recevoir, ou encore lorsqu’il décède avant l’accomplissement de la condition suspensive dont le legs est assorti si la condition a un caractère purement personnel. (Emphasis added) [Soulignement ajouté] [ 23 ] It is not uncommon to have stipulations in wills providing that the succession shall pass to another if the originally intended recipient dies within a specified reasonable timeframe following the death of the testator. The provisions of

Article Fourth of the Will with respect to the bequest to the husband are a typical example: “[s]hould my said husband predecease me or die within ninety (90) days of my death, in which event he shall be deemed to have predeceased me […].” This type of stipulation is a suspensive condition of a purely personal nature which entails the lapse of the legacy should the condition be fulfilled. There is no requirement to create a trust to ensure that this suspensive condition applies. Nor is such a condition otherwise impossible or contrary to public order. [ 24 ] There is no fundamental legal difference between that condition and the one stipulated in

Article Fourth of the Will with respect to the children, which states: [s]hould any of my said children in the first degree herein named predecease me or die before receiving their full share of the capital and leave no lawful issue surviving […] then the share of the said deceased child shall accrue to the survivor(s).” This, again, is a suspensive condition of a purely personal nature which entails the lapse of the legacy should the condition be fulfilled. [ 25 ] When the late Richard Abrams accepted the succession, he did so by also accepting that suspensive condition, which is binding on him, the other heirs and the liquidators.

In effect, that condition provides that his remaining share of the succession devolves to his sisters should he die prior to the end of the exercise of the seisin by the liquidators. [ 26 ] I see nothing in this provision that goes against public order, the evident purpose of the provision being to ensure that the succession benefits the members of the Testator’s family and not strangers. The condition is not impossible, since it itself ends with the end of the exercise of the seisin by the liquidators, a clearly ascertainable date.

Neither does it go against public order, as it applies during a reasonable timespan, which is that of the exercise of the seisin by the liquidators, as provided by law. [ 27 ] I add the following with respect to the appellant’s submissions at the hearing regarding the effect of the seisin. [ 28 ] Articles 625 and 777 C.C.Q. provide for the seisin of the patrimony of the deceased: BOOK THREE SUCCESSIONS LIVRE TROISIÈME DES SUCCESSIONS TITLE TWO TRANSMISSION OF SUCCESSION

TITRE DEUXIÈME DE LA TRANSMISSION DE LA SUCCESSION

CHAPTER I SEISIN

CHAPITRE PREMIER DE LA SAISINE

625. The heirs are seized, by the death of the deceased or by the event which gives effect to a legacy, of the patrimony of the deceased, subject to the provisions on the liquidation of successions . 625. Les héritiers sont, par le décès du défunt ou par l’événement qui donne effet à un legs, saisis du patrimoine du défunt, sous réserve des dispositions relatives à la liquidation successorale . (…) […] TITLE FIVE LIQUIDATION OF SUCCESSIONS

TITRE CINQUIÈME DE LA LIQUIDATION DE LA SUCCESSION

CHAPTER I OBJECT OF LIQUIDATION AND SEPARATION OF PATRIMONIES

CHAPITRE PREMIER DE L’OBJET DE LA LIQUIDATION ET DE LA SÉPARATION DES PATRIMOINES 777 . The liquidator exercises , from the opening of the succession and for the time necessary for liquidation, the seisin of the heirs and the legatees by particular title. 777 . Le liquidateur exerce , à compter de l’ouverture de la succession et pendant le temps nécessaire à la liquidation, la saisine des héritiers et des légataires particuliers. The liquidator may even claim the property against the heirs and the legatees by particular title.

Il peut même revendiquer les biens contre ces héritiers et légataires. (…) […] (Emphasis added) [Soulignement ajouté] [ 29 ] In the case of a will, seisin intervenes at the opening of the succession, which is at the time of the death of the testator. Seisin does not confer any right on the liquidators to the ownership of the property of the testator during their administration of the succession. Rather, it grants the liquidators the right to the effective control of that property.

Through seisin, the liquidators are put in effective control of the testator's patrimony to oversee its administration and to also ensure that the testator's last wishes, as expressed in the will, are exactly fulfilled and executed. [ 30 ] The unanimous decision of the Supreme Court of Canada in Hall v. Quebec (Deputy Minister of Revenue) [14] (“ Hall ”) addressed the issue of seisin. There, Gonthier, J. considered the nature, effect and purpose of the exercise of the seisin by the testamentary executors in terms that are pertinent to this case.

In essence, the exercise of the seisin by the testamentary executors is the means by which they must carry out and give effect to the testator’s wishes as expressed in the will: [15] [27]

Article 918 C.C.L.C. [art. 777 C.C.Q. ] provides that testamentary executors, “for the purposes of the execution of the will, are seized as legal depositaries of the moveable property of the succession, and may claim possession of it even against the heir or legatee”. Thus, the executor’s seizin differs from that of the legatees in that it is granted so that the executor may execute the will .

Article 921 C.C.L.C. provides that this seizin may be expanded by the will. It is therefore necessary to refer to the will in order to determine the scope of the seizin. Once the execution of the will is terminated, the seizin comes to an end even if the testator extended it beyond that time. [28] The effect of the seizin therefore appears to be that the executor is in a sense given a mandate to carry out and give effect to the testator’s wishes . As Mignault stated, the executor’s seizin is [ translation ] “the means to carry out this mandate and the purpose of the execution is to give effect to the clauses of the will” (Mignault, supra , t. 4, 1899, at p. 464). [29]

Article 918 suggests that the executor’s seizin is consistent with the concept of a depositary. However, the comparison between the execution of a will and a deposit is not entirely appropriate, since the executor does not necessarily have custody of the property, whereas a depositary must keep it until the end of the deposit (R. Comtois, “L’exécuteur testamentaire” (1967), 2 R.J.T . 533, at p. 538).

The executor is thus a mandatary whose mandate is to execute the will; seizin is the means by which this execution can take place. (Emphasis added) [ 31 ] Gonthier, J. further set out that the exercise of the seisin by the testamentary executors prevails over the claims of the heirs, and this is so in order to specifically ensure that the will is properly executed in accordance with its terms: [16] [30] According to the very wording of art. 918 C.C.L.C. [art. 777 C.C.Q. ] , a testamentary executor may, during the term of his or her seizin, claim possession of the moveable property even against the heir and the legatee. [Emphasis added in original] The codifiers’ intention in drafting this

article was clearly to confer on the testamentary executor more powers than mere de facto possession. Thus, the testamentary executor’s seizin appears to have a certain priority over that of the heir during the administration of the estate. Notary Comtois, supra , at p. 538, stated the following on this subject: [ translation ] The executor’s seizin does not exclude that of the successors. There is a sort of juxtaposition of seizins owing to the purpose of each of them.

Although the successors are seized of the property, they cannot reap the benefits of their seizin as long as the executor is discharging his or her duties, that is, as long as the executor him- or herself has the seizin . [Emphasis added in original] [31] This reasoning is based on a joint reading of arts. 891 and 918 C.C.L.C. For the duration of their seizin, testamentary executors are entitled to claim the moveable property of the estate, even in the legatee’s hands, because they must ensure that the will is properly executed .

The testamentary executor’s seizin must thus be given a certain priority over that of the legatee for purposes of administration. Even though the universal legatee is the real owner of the bequeathed property, art. 918 C.C.L.C. provides that the executor’s seizin prevails over that of the legatee. The legatee therefore cannot exercise his or her rights in the bequeathed property until the executor’s seizin has terminated.

Smyth, supra , at p. 184, stated the following in this respect: [I]n one aspect, the executor’s seizin takes precedence for he is empowered, in virtue of it, to claim possession of the moveable property

even against the heir or legatee. (…) [34] Were this Court to accept the Court of Appeal’s decision, every legatee would be entitled to demand the bequeathed property during the actual liquidation of the succession. That would have the effect of depriving the executor of any power of administration over the estate patrimony, which is surely not what the legislature intended. The testamentary executor’s seizin gives him or her control over the estate patrimony, and legatees can demand their shares only once that seizin has terminated.

The legatee’s rights are secondary to those of the testamentary executor, who controls the property of the estate in accordance with the instructions set out in the will. (Emphasis added) [ 32 ] These principles developed under the Civil Code of Lower Canada apply with even more force under the provisions of the Civil Code of Québec , since there is now only one single seisin which, in the case of a will, is exercised by the liquidators. [17] [ 33 ] To summarize, a suspensive condition of the type expressed in

Article Fourth of the Will, providing that an heir’s share is to accrue to the other heirs in the event of his death prior to him receiving his full share of the capital of the succession, is not inconsistent with general principles of succession law. It is a suspensive condition of a personal nature contemplated by articles 747 and 750 C.C.Q , a condition under which the heir accepts the succession. Such a condition, if it arises, must be enforced by the liquidators of the Will while they exercise the seisin, irrespective of whether or not a trust was created under the Will.

In short, the suspensive condition is binding on both the heirs and the liquidators and must be implemented by the latter. [ 34 ] In this respect, the appellant’s reliance on Warhaft is misplaced. In that case, the will provided that the testator’s two sons would be provided “absolute ownership” of their share of the succession. However, the will also stipulated that if any of the sons died “before coming into possession of their respective share”, then that share would “devolve to their respective children”.

Baker, J.S.C. interpreted these provisions as reflecting the testator’s intent to stipulate that should one of the testator’s sons predecease her, then his share would accrue to his children: “It would be far more logical to consider that her wish was that if her own children were alive at the time of her death, then they would inherit as she directed in clause 8. Alternatively, if either were dead, then that dead child’s children would inherit.” [18] The Warhaft decision is thus based on the

interpretation of the testator’s wishes as expressed in her will and therefore has no bearing on the present case. [ 35 ] Finally, though this appeal may be resolved without reference to any trust, the Will in this case also clearly specifies the creation of trusts in its

Article Fifth, which reads as follows: FIFTH In respect of any portion of my Estate accruing for a different beneficiary, a separate trust shall be deemed to apply thereto. [ 36 ] This provision, as well as the other provisions of the Will that refer to trusts, also foster the conclusion that a separate trust was created for the share of the succession bequeathed to each of the Testator’s children, as the trial judge found. That being said, whether or not a trust was created by the Will is immaterial to the validity and enforceability of the impugned condition set out in its

Article Fourth. [ 37 ] The Superior Court judge decided not to order the payment of legal costs. The respondent seeks costs on appeal only. CONCLUSION [ 38 ] For these reasons, I propose that the Court dismiss the appeal, with legal costs to be paid by the appellant on appeal only. ROBERT M. MAINVILLE, J.A.