2013 QCCA 2030, 2013 QCCA 2030

Fleischer (Estate of) 2013 QCCA 2030 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-023885-130 ( 500-14-040243-123, 500-14-040348-120 ) MINUTES OF THE HEARING DATE: November 25, 2013 CORAM: THE HONOURABLE PIERRE J. DALPHOND, J.A. LORNE GIROUX, J.A. MANON SAVARD, J.A. IN THE ESTATE OF THE LATE ISIDORE FLEISCHER APPELLANT ATTORNEY GEORGETTE FLEISCHER In person RESPONDENT ATTORNEY THE AMERICAN MATHEMATICAL SOCIETY Mtre Sébastien Matte Dufour, Mottet, Avocats, s.e.n.c MIS EN CAUSE ATTORNEY

SYDNEY BULMAN-FLEMING US BANK. Mtre Sébastien Matte Dufour, Mottet, Avocats, s.e.n.c Motion to dismiss the appeal form a judgment rendered on August 16, 2013 by the Honourable Mr. Justice David R. Collier of the Superior Court, District of Montreal. (Articles 501 (4.1) et (5) C.C.P.) Clerk: Marcelle Desmarais Courtroom: Antonio-Lamer HEARING 12 h 31 Mtre Sébastien Matte has nothing to add to his written motion. 12 h 32 Submissions by Madam Georgette Fleischer. 12 h 58 Suspension 13 h 15 Resumption BY THE COURT: Judgment rendered by the Honourable Pierre J. Dalphond, J.A. – see page 3. Marcelle Desmarais Clerk BY THE COURT

JUDGMENT [ 1 ] The judge of the Superior Court rightly applied

section 774 C.C.Q . to conclude that the photocopy presented to him could be considered a reconstitution of the original will. [ 2 ] As for

section 714 C.C.Q ., it does not apply in this instance as it is concerned with documents which constitute incomplete wills.

Here the document presented was a photocopy of a document that was otherwise a complete will. [ 3 ] The evidence was overwhelming about the fact that the copy presented to the Superior Court reflected the original will of the deceased made in 1982. [ 4 ] Thus, the sole remaining question, as rightly put by the trial judge, was whether the 1982 will was revoked afterwards by the testator who died in 2011. [ 5 ] In fact, the evidence showed that the will was confirmed by the testator in 2004.The burden to show a subsequent revocation lied with the appellant. [ 6 ] The judge concluded that such revocation was not established upon the balance of probabilities.

The appellant does not show prima facie that this conclusion amounts to palpable error. [ 7 ] Thus a panel of this Court would not be in a position to intervene and reverse. FOR THESE REASONS, THE COURT: [ 8 ] GRANTS the motion to dismiss, without costs. [ 9 ] DISMISSES the appeal, without costs. PIERRE J. DALPHOND, J.A. LORNE GIROUX, J.A. MANON SAVARD, J.A.