2020 QCCA 1151, 2020 QCCA 1151

Ma.R. c. M.R. 2020 QCCA 1151 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028455-194 , 500-09-028460-194 (500-17-094077-164) DATE: 7 juillet 2020 CORAM: THE HONOURABLE JEAN BOUCHARD, J.A. STEPHEN W. HAMILTON, J.A. MICHEL BEAUPRÉ, J.A. 500-09-028455-194 MA. R. APPELLANT – Defendant v. M. R. S. R. RESPONDENT – Plaintiffs et SH. S. D. R. R. S. L’OFFICIER DE LA PUBLICITÉ DES DROITS DE LA CIRCONSCRIPTION FONCIÈRE DE MONTRÉAL IMPLEADED PARTIES – Impleaded parties 500-09-028460-194 R. S. SH. S. APPELLANT – Impleaded parties v. M. R. S. R.

RESPONDENT – Plaintiffs JUDGMENT [ 1 ] In two separate appeals, the Appellants appeal from the judgment rendered on June 19, 2019 by the Superior Court, District of Montreal (the honourable Pepita G. Capriolo, J.S.C.). [1] In the first appeal (500-09-028455-194), Ma. [2] appeals from the conclusions which annul the last will and testament and codicil of K. (her mother) and order her to furnish an accounting of her receipt and administration of any assets belonging to her mother prior to and after her death and to return all assets belonging to her mother at the time of her death.

In the second appeal (500-09-028460-194), Sh. and R. appeal from the conclusions which annul the transfer of the house from K. (their grandmother) to them and order them to furnish an accounting of their receipt and administration of any sums deriving from the house. CONTEXT [ 2 ] These appeals are just another

chapter in the long-running dispute over money in the R. family. It is necessary to understand some of that background. [ 3 ] The family patriarch, Sl., was a wealthy man with substantial holdings in real estate. He passed away on June 14, 2003. His

wife K. passed away on December 1, 2014. [ 4 ] Sl. and K. had four children: D., M., Ma. and Sh., all of whom are still living. Ma. lives in New York and the other three live in Montreal. D. has a mental illness and lives in a basement-level apartment in the parents’ home. Sh. and R. are Ma.’s daughters. There are many other grandchildren. [ 5 ] The dispute has its origin in Ma.’s belief that she was not treated fairly by her father. She believes that he was not as generous to her as he had been to his other children.

She complained to him during his lifetime, but the issue was not resolved when he passed away on June 14, 2003. [ 6 ] After the father passed away, no one found a will. A notary had prepared a draft in 1995, which provided for everything to be held in trust with the income to K. during her lifetime and the capital to be divided equally among the four children when K. died. A number of months after the father passed away, as the parties were preparing to appoint a liquidator to distribute his estate on an intestacy, Ma. found a will. It was the 1995 draft with a number of clauses added, to the benefit of Ma..

The motion to probate that will was dismissed by the Superior Court and Ma.’s motion for permission to appeal was dismissed. Ma. then produced a cheque signed by the father on the back of which he purported to give Ma. certain assets. That cheque was not accepted by the siblings. Ma. was subsequently declared unworthy of inheriting on the basis that Ma. or someone acting on her behalf and with her consent had altered the will. [3] The appeal from that judgment was also dismissed. [4] [ 7 ] After Sl. passed away, Ma. stayed with K. in the summer of 2003 and came back to Montreal at Passover 2004.

Throughout this period, K. was upset with her other children, apparently because they were not treating Ma. fairly. During the Passover 2004 visit, Ma. signed the affidavit in support of her motion to probate the father’s altered will and, on April 14, 2004, she took K. to see a notary to execute a will in which K. left everything to Ma.. [5] The existence of that will was not disclosed until after K. passed away 10 years later. [ 8 ] During this period, K. also gave Ma. her condominium in Florida and she instructed her Swiss bank to transfer $1 million to Ma..

When the other children found out about the bank instructions, they had K. cancel them and instead keep $250,000 and divide the rest evenly among the four children. K. later transferred the $250,000 to Ma.. [ 9 ] K. became seriously ill at the end of 2006 and was hospitalized for lengthy periods in 2006 and 2007. The siblings allege that Ma. came to Montreal and took over: she excluded them from K.’s hospital room and interfered with K.’s medical treatment. M. and Sh. ultimately made a motion to open a protective supervision for K..

It was dismissed because K. appeared competent, but the judge had harsh words for Ma. and ordered her to pay costs. [6] During those proceedings, K. told the judge that she did not have a will. [7] [ 10 ] After she returned home, K. required full time care and Ma. moved in to look after her until K. passed away on December 1, 2014.

Ma.’s daughters Sh. and R. also moved in for periods of time. [ 11 ] On June 6, 2012, K. signed a notarial deed whereby she transferred her house to Sh. and R. for $1. [ 12 ] M. and Sh. took proceedings to annul the will and the transfer of the house for undue influence on May 25, 2016. They do not raise any issue as to K.’s capacity.

TRIAL JUDGMENT [ 13 ] The theory put forward by M. and Sh. is that Ma. used her access to K. to convince her that she (Ma.) was being cheated out of what should have been hers by M. and Sh., that M. and Sh. did not care about K. but only her money and that M. and Sh. wanted to put K. in a home. They make the same arguments in relation to the house 8 years later. [ 14 ] M. and Sh. testified as to their difficult relationship with Ma. and how she screamed at them in front of their mother or within the hearing of their mother.

They said that Ma. prevented them from spending any time alone with their mother and that the mother would invite them over when Ma. was not around. They testified as to Ma.’s behaviour in this and in the other litigation. [ 15 ] Ma. and her daughters deny any impropriety. They testified as to their loving relationships with K. and added that M. and Sh. were free to come over whenever they wanted but they rarely did.

Ma. denied any involvement in hiring the notaries and giving them instructions, and said that the will and the gift were entirely K.’s idea. [ 16 ] The trial judge did not believe anything that Ma. or her daughters said. She concluded that the proof of undue influence was sufficient, because it was the only explanation for K. leaving everything to Ma. and then giving the house to Sh. and R. without making any provision to protect her son D. and without leaving herself any revenue to pay her considerable homecare expenses. She therefore annulled the will and the transfer of the house.

ANALYSIS [ 17 ] There are two appeals – one by Ma. against the cancellation of the will and one by Sh. and R. against the cancellation of the transfer of the house. Some of the arguments raised by Sh. and R. overlap with Ma.’s arguments and will be answered within the analysis of Ma.’s appeal. MA.’S APPEAL [ 18 ] Ma.’s submissions bear on questions of fact or mixed fact and law, for which the standard of intervention is the demonstration of a palpable and overriding error – a “highly deferential” standard. [8]

[ 19 ] Ma. is of the view that her testimony was not given due consideration. She submits that the trial judge established her lack of credibility on the basis of past judgments, which deprived her of her fundamental right to have a fair and impartial hearing. Similarly, Sh. and R. submit that the trial judge erred in fact and in law by relying on evidence from past litigation rather than allowing the evidence set forth at trial to govern the case at hand – especially since they (Sh. and R.) were not even parties to any of the previous litigation. [ 20 ] These arguments are unfounded.

First, it is not accurate to say that the trial judge established Ma.’s lack of credibility solely on the basis of past judgments.

She made clear and devastating findings as to Ma.’s credibility based on her testimony during the trial: “[Ma.] repeatedly lied, contradicted herself not only in regard to previous examinations out of Court but also in regard to testimony made an hour previously” [9] and “[b]efore this Court, Ma.’s lies were too numerous to mention.” [10] She also commented on Ma.’s behaviour during the trial: [43] Her behaviour in the courtroom corroborated her siblings’ descriptions of her actions out of Court: she raised her voice, threatened to walk out when displeased, even physically attempted to grab an item from the hands of the lawyer representing the opposing party. [ 21 ] Further, to the extent that the trial judge relied on findings as to Ma.’s credibility, she was entitled to do so.

Judgments are juridical facts admissible in evidence that have probative value, even if the authority of res judicata cannot be applied pursuant to

Article 2848 C.C.Q . [11] Findings as to credibility made in previous judgments involving the parties and the rest of the family are clearly relevant, and the trial judge has discretion to give them evidentiary weight. There is no reason for the Court to intervene. [ 22 ] Ma., Sh. and R. highlight that no witness, other than M., Sh. and Sh.’s daughter, was produced to corroborate any of Ma.’s alleged screaming and hysteria or any undue pressure. They submit that the trial judge should have considered the absence of third-party corroboration. [ 23 ] The Respondents, as Plaintiffs, have the burden of proving undue influence on a balance of probabilities.

Article 2844 C.C.Q. provides the general rule that proof may be adduced by a single witness. There is no specific requirement in a matter of undue influence to call third-party witnesses, and, b ecause undue influence is generally a secret or covert affair, the absence of third-party corroboration is not surprising. The trial judge concluded that the Respondents had indeed discharged their burden of proof even in the absence of testimony by third-party witnesses.

The Appellants do not demonstrate any palpable error by the judge in that regard. [ 24 ] Ma. also submits that the trial judge erred in her judgment in disregarding the probative testimony of Mtre Catherine Bolduc, the notary who received K.’s will, regarding K.’s capacity and state of mind at the moment of signing the will.

Ma. submits that the trial judge misquoted Mtre Bolduc’s testimony at paragraph 19 of her judgement and emphasizes that Mtre Bolduc testified at length on K.’s feelings regarding the discord amongst the siblings, her awareness of the consequences and her confidence in her decision to draft her will the way she did. [ 25 ] The trial judge stated: [18] Me Catherine Bolduc, the notary who witnessed the Will, came to testify. She explained that she had been recommended by Me Louise Touchette, a colleague of Me Suzanne Côté, Ma.’s lawyer in the probate file.

The notary, however, was led to believe that Me Touchette represented both Ma. and her mother in the probate file. The only prior discussions regarding the content of the will took place between Ma., her husband, Ma.’s lawyer and the notary, during a conference call in which K. did not participate. [19] The notary did spend time alone with K. in her office on the day of signing.

Her testimony on this is revelatory: K. “ was very sad to leave out her other children but she felt she had to because the children wanted to take away Ma.’s property under her father’s will ”. [20] D.’s special situation and the fact that he was living in his mother’s house at the time were not even mentioned. [Emphasis in original] [ 26 ] The trial judge correctly quoted Mtre Bolduc.

When asked to describe her meeting with K., Mtre Bolduc indeed explained that K. “was sad of what she was doing, but she thought it was the good thing to do” and that K. “mentioned that some of her children wanted to take away property from Ma., property which came from her husband’s estate” and that “she didn’t agree with that, and she wasn’t happy with the way things were going between her children.” [12] [ 27 ] It is true that Mtre Bolduc explained that she had the sense that K. was exercising her free will.

However, before the trial judge, the issue was not whether K. intended to disinherit M., Sh. and D. to the benefit of Ma., but rather why K. made that decision.

Therefore, the trial judge did not err when she referred to Mtre Bolduc’s testimony to conclude that Ma.’s untruthful representations caused her mother to sign a will without free will, by convincing her that her family was acting against her father’s wishes. [ 28 ] Finally, Ma. argues that the trial judge ventured into presumptive proof based on past legal disputes, rather than conducting a thorough inquiry into the specifics of the allegations in the case at hand.

She is of the view that the trial judge failed to consider the burden of proof required to establish a presumption of undue influence. [ 29 ] Contrary to Ma.’s claims, the trial judge correctly identified at paragraphs 58 to 63 of her judgment the burden of proof resting on the Respondents’ shoulders, as Plaintiffs, with respect to undue influence . Moreover, she referred at length to the evidence adduced at trial.

In the Court’s view, Ma. essentially reviews the evidence, emphasizing elements which, in her opinion, the trial judge did not give enough weight to, and invites the Court to come to a different conclusion, without demonstrating any palpable and overriding error by the trial judge. That is not a proper basis for an appeal. SH. AND R.’S APPEAL

[ 30 ] Sh. and R. submit that the trial judge erred when she failed to consider the possibility that the house was transferred to them as recognition of the efforts and sacrifices they made to assist K. over the course of a number of years. [ 31 ] The trial judge concluded that Sh. and R. were no more credible than their mother Ma.. She found that they lied under oath about their place of residence. [13] S he doubted the sincerity of their version of events because their testimony during the trial was “astoundingly similar” . [14] There is no reason to intervene in that matter.

It is true that their testimonies were quite similar and m uch deference is owed to a trial judge who saw and heard the witnesses testify and assessed their credibility first hand. [15] [ 32 ] Sh. and R. submit that the trial judge erred by diminishing the testimony of Mtre Nicole Riccio, the notary who received the deed of transfer, who testified that she had ascertained that K. signed the document of her own free will. [ 33 ] Again, however, it is not K.’s intent to transfer her house to Sh. and R. that is called into question.

What is actually contested is the validity of the information on which K. based her decision to transfer the house.

The trial judge found that the transfer of the house was “totally incomprehensible” [16] : it left D. completely unprotected, [17] it deprived K. of her sole source of regular income, the rent from the upstairs apartment, which she needed to pay her expenses, [18] and it created a tax liability, in respect of which the notary had K. sign a Limitation de mandat exonerating her of all liability in this regard. [19] [ 34 ] In reaching her decision that Ma., Sh. and R. exercised undue influence on K., the trial judge relied on a presumption.

She retained that at the time of the deed of transfer, K. was becoming increasingly frail, was completely dependent on Ma. and feared being left without a family member near her. [20] She also highlighted that Ma. repeatedly claimed that her mother did not have enough money to cover her expenses and used this argument to explain the donation of her mother’s condo in Florida.

Finally, the trial judge noted that R. testified that, after the transfer of the house to Sh. and R., K. “would repeatedly ask to stay with her ‘ because she transferred the house to her’ .” [21] [ 35 ] All of these factual conclusions are supported by evidence. [ 36 ] From those conclusions, the trial judge drew an inference of fact that Ma. took advantage of her mother’s frailty and fears and unduly influenced K. to transfer the house to her daughters by convincing her that she would otherwise be left alone.

She also concluded that Sh. and R. participated in this “scheme”. [22] [ 37 ] Sh. and R. have not demonstrated any patent and overriding error in the trial judge’s appreciation of the proof . Her findings of fact are supported by the evidence and the inferences that she draws are consistent with those findings of fact.

In the absence of any patent and overriding error, there is no reason to intervene in that matter. [ 38 ] Finally, Sh. and R. argue that the Respondents’ action to set aside the transfer of K.’s home was prescribed. [ 39 ] The determination of the beginning of the period of prescription is a question of fact. [23] Sh. and R. did not present any evidence that they told M. or Sh. about the transfer. The only evidence in support of the prescription argument is the following entry dated April 9, 2013 in the billing of the father’s estate’s liquidator: “Telephone call from Sh.

R.: commission, transfer of K.’s home, family patrimony.” [24] If Sh. had knowledge of the transfer at that date, the action would be prescribed. [ 40 ] Sh. testified that she did not know about the transfer to Sh. and R. until 2015 and that this telephone conversation was about the transfer of the house from the liquidator to Sh.. M. also testified that he had become aware of the transfer only in 2015, after K.’s death. [ 41 ] The trial judge was convinced by their testimonies.

There is no error in her analysis: the liquidator’s statement of fees is ambiguous, and she was satisfied by the explanation provided by M. and Sh.. FOR THESE REASONS, THE COURT: [ 42 ] DISMISSES the appeals, with costs. JEAN BOUCHARD, J.A. STEPHEN W. HAMILTON, J.A. MICHEL BEAUPRÉ, J.A. Mtre Tom Markakis DE LOUYA MARKAKIS For Ma. R. Mtre Michael D. Worsoff CAMPBELL COHEN WORSOFF For M. R. S. R. Mtre Asher Neudorfer SARNA NEUDORFER

For R. S. Sh. S. Date of hearing: May 25, 2020