2014 QCCA 1996, 2014 QCCA 1996

Hiritsch c. Kalabishko 2014 QCCA 1996 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-023586-134 ( 500-17-048837-093 ) MINUTES OF THE HEARING DATE: October 31, 2014 CORAM: THE HONOURABLES YVES-MARIE MORISSETTE , J.A. NICHOLAS KASIRER , J.A. MARTIN VAUCLAIR , J.A. APPELLANT COUNSEL VLADIMIR HIRITSCH Mtre michael kushnir ( KUSHNIR & WATERS AVOCATS INC . ) RESPONDENT COUNSEL VERONA KALABISHKO Mtre robert brankin (ROBERT BRANKIN, AVOCAT) IMPLEADED PARTY COUNSEL IGOR PRYSZLAK In appeal from a judgment rendered on April 16, 2013, by the Honourable Madam Justice France Dulude of the Superior Court, District of Montreal.

NATURE OF THE APPEAL : Liberalities – probate of a will – presumption of undue influence Clerk: Marcelle Desmarais Courtroom: Antonio-Lamer HEARING 9 h 30 Continuation of the hearing of October 27, 2014. Judgment - see page 3. (

s) Clerk BY THE COURT JUDGMENT [ 1 ] Vladimir Hiritsch appeals from a judgment of the Superior Court [1] , District of Montreal (the Honourable France Dulude), which on April 16, 2013 granted, without costs, the respondent’s motion to probate the will of the late Basil Hiritsch, dated May 25, 2003 and modified by a codicil of September 20, 2006. * * * * * [ 2 ] The judgment below includes a detailed account of the facts which gave rise to the litigation. An extensive review of these circumstances is therefore unnecessary at this stage and a

summary of the main facts of the case will suffice. [ 3 ] The appellant Vladimir Hiritsch (“VH”) is the son of the testator Basil Hiritsch (“BH”). Between August 2002 and the time of his death on December 27, 2008, BH resided in Montreal at the Manoir Louisiane, a nursing home for senior citizens. The relocation from his house to a nursing home became necessary as a result of a failed rehabilitation following a hip fracture and a diagnosis of dementia.

At the time, BH was approaching 90 years of age. [ 4 ] Under a notarized will of May 25, 2003 (”the Will”) bearing BH’s signature, VH became his father’s sole universal residuary legatee. In February 2006, the Very Reverend Ihor G. Kutash (“IK”), whom the Will designated as the liquidator of BH’s succession, hired the respondent Verona Kalabishko (“VK”) to provide daily care and assistance to BH at the Manoir Louisiane. In consideration for these services, VK was to receive a remuneration paid out of BH’s personal funds.

VK did provide the required care and assistance to BH until his death on December 27, 2008 and she was remunerated accordingly. On September 20, 2006, in the presence of two witnesses, BH signed a first codicil to his Will, whereby he bequeathed to VK an amount of $ 50,000. On January 11, 2008, BH signed a second codicil before witnesses which designated VH as liquidator of his succession, in replacement for IK. * * * * * [ 5 ] Although he did not reiterate all the arguments advanced at trial – and in particular, the argument based on

article 761 C.C.Q. – VH raises nine grounds of appeal against the judgment a quo . These grounds, which overlap, pertain primarily to the judge’s treatment and

interpretation of the evidence before her and the allocation of the burden of proof between the parties. In essence, the appellant challenges the judgment below from three angles. He argues that (

i) the trial judge erred when she stated that the validity of the codicil of September 20, 2006, (and consequently of BH’s consent) was to be determined “au moment de sa signature”, (ii) in view of what the appellant considers to be prima facie evidence of BH’s incapacity, the respondent was required to adduce evidence of BH’s capacity at the relevant time, which she failed to do, and (iii) the codicil of September 20, 2006, was invalid by reason of a defect of form and, in holding that it was valid, the trial judge erred in her

interpretation of

article 714 C.C.Q. [ 6 ] The first argument is without merit. It is true that, in paragraph [8] of her reasons, the trial judge formulated the issue for decision in these terms: “Le Tribunal doit décider si le codicille est valide et s’il exprime la volonté du défunt au moment de sa signature.” But the judge did not fail to adhere to the rule in

article 707 C.C.Q. that capacity of the testator is considered relative to the time he made the will. It is well apparent from her judgment when considered as a whole

that she gave due regard to the broader context and that she considered BH’s capacity to bequeath his property as it manifested itself throughout the period from August 2002 to the time of his death, focussing on the period when the first codicil was signed by BH. At that time, in September of 2006, BH expressed the desire to modify his notarized will of May 25, 2003, and in January 2008, again before two witnesses, he modified his will for a second time in order to appoint VH as liquidator of his succession.

The scope of the trial judge’s analysis was entirely adequate. [ 7 ] The evidence before the trial judge consisted inter alia of various documents, including the two codicils of September 2006 and January 2008, and excerpts from BH’s medical file at the Montreal General Hospital during the period between April and August 2002. It also included the testimonies of the parties themselves and of witnesses who had signed in that capacity the codicil of September 2006, or had dealt with BH during or after his hospitalization.

The medical file, in and of itself, was not conclusive, and other evidence, including the appellant’s own testimonial evidence about his father’s state of mind at the time the codicil of January 2008 was drawn up and signed, afforded a sufficient foundation for the trial judge’s findings of fact. It is trite law that such findings are not reviewed on appeal in the absence of an obvious error: see Housen v. Nikolaisen [2] and H.L. v. Canada (Attorney General) . [3] What the Court observed in Paré v. Paré [4] is equally apposite in the case at bar: [21] La preuve était, certes, partagée.

Il serait exagéré de dire que la conclusion s’imposait à l’esprit avec une aveuglante évidence comme la seule possible dans les circonstances. Mais la résolution de cette question tient essentiellement à l’appréciation de la preuve qui, encore une fois, relève du juge du procès. En l’absence d’une erreur caractérisée, notre Cour ne peut intervenir. The appellant fails to show why his second argument warrants a reversal of the judgment a quo . [ 8 ] The appellant’s third argument is based on

article 728 C.C.Q. which provides, in its relevant part: 728. Lorsque le testament est écrit par un tiers ou par un moyen technique, le testateur et les témoins doivent parapher ou signer chaque page de l’acte qui ne porte pas leur signature. 728. Where the will is written by a third person or by a mechanical process, the testator and the witnesses initial or sign each page of the act which does not bear their signature. In this instance, the codicil of September 20, 2006, is a two-page document which is typewritten. The first page bears the date, handwritten by BH, as well as BH’s signature.

The second page bears, again, the date, handwritten by BH, as well as his signature, and the names of the two witnesses, handwritten by them in print and followed by their signature. [ 9 ] Commenting on

article 728 C.C.Q., the trial judge correctly remarks in paragraph [56] of her reasons that “[c]ette condition de forme a pour but d’assurer l’authenticité de chacune des pages du testament à vérifier”. The initials or signature of each witness were missing on the first page of the codicil and the question was whether

article 714 C.C.Q. could cure this deficiency. It states: 714. Le testament olographe ou devant témoins qui ne satisfait pas pleinement aux conditions requises par sa forme vaut néanmoins s’il y satisfait pour l’essentiel et s’il contient de façon certaine et non équivoque les dernières volontés du défunt. 714. A holograph will or a will made in the presence of two witnesses that does not meet all the requirements of that form is valid nevertheless if it meets the essential requirements thereof and if it unquestionably and unequivoc​ally contains the last wished of the deceased. In light of the purpose of the rule in

article 728 C.C.Q., of the short length of the document in question, and of the presence of BH’s signature and handwritten date on the first page, there was ample justification here for invoking this rule. The codicil being substantively valid, the trial judge’s conclusion that it “unquestionably and unequivoc​ally contain[ed] the last wished of the deceased” was unimpeachable. FOR THESE REASONS , the Court: [ 10 ] DISMISSES the appeal, with costs. YVES-MARIE MORISSETTE, J.A. NICHOLAS KASIRER, J.A. MARTIN VAUCLAIR, J.A.