2024 QCCA 139, 2024 QCCA 139

Taylor c. Elias 2024 QCCA 139 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-030142-228 (455-17-001370-204) DATE: February 5, 2024 CORAM: THE HONOURABLE MARK SCHRAGER, J.A. JOCELYN F. RANCOURT, J.A. STEPHEN W. HAMILTON, J.A. IAN TAYLOR APPELLANT – Plaintiff v.

ALEXANDER ELIAS RESPONDENT – Defendant JUDGMENT [ 1 ] The appellant appeals against a judgment rendered on June 20, 2022, by the Superior Court, District of Bedford (the Honourable Justice Sylvain Provencher), which dismisses his claim to annul a will. [1] [ 2 ] The dispute has its origins in the notarial will of March 22, 2016 of the late Barry Taylor (the “ Deceased ”), who died of cancer on October 30, 2019 at the age of 73.

It pits the appellant, the Deceased's younger brother, against the respondent, liquidator and universal legatee of the assets under the terms of the disputed will. [ 3 ] In first instance, the dispute revolved around two issues: (1) the capacity of the Deceased to make a will in March 2016, and (2) the respondent's unworthiness to succeed the Deceased due to his actions in connection with the modification of the testamentary provisions. [ 4 ] On appeal, the issue of capacity remains contentious, along with the question of whether the will truly represents the Deceased's last wishes. I.

FACTS [ 5 ] The facts of the case are well presented by the trial judge. [ 6 ] The Deceased lived in the Town of Brome Lake, located in the Eastern Townships region. Single and childless, he had no close family, with the exception of the appellant, who resides in Ontario and with whom he maintained sporadic ties. [ 7 ] The respondent testified that he had known the Deceased for nearly 45 years. They met while the latter was working at the Montreal stock exchange and remained friends ever since.

A life insurance broker and investment advisor by profession, he occasionally managed the Deceased's investments. [ 8 ] On August 11, 2012, during his retirement, the Deceased suffered a stroke that required a long period of hospitalization and rehabilitation. Towards the end of November 2012, he was nevertheless able to return to his home and live independently. This incident left him with permanent cognitive after-effects, particularly with regard to his short-term memory.

He was prescribed medication to help with this in April 2016. [ 9 ] On December 19, 2012, the appellant accompanied the Deceased to the office of Maryse Gallagher, notary in Lac-Brome, to sign a mandate for protection in case of incapacity, in which he was designated mandatary. The Deceased took the opportunity to discuss the disposition of his property in the event of his death. On February 5, 2013, he returned to Notary Gallagher to sign a will before her (“ the 2013 will ” ). [ 10 ] This will appoints the appellant as liquidator.

It provides for a specific bequest of $50,000 to a friend, with the value of the remaining property to be shared between the appellant (50%) and four friends of the Deceased (12.5% each), instituted as residual universal legatees.

[ 11 ] On October 22, 2014, the Deceased signed a general power of attorney (“ General Power of Attorney ”) so that the appellant could, if necessary, carry out transactions on his bank account. A second, similar power of attorney was signed on December 27, 2018. [ 12 ] The Deceased met with Notary Marcel Tétreault, in Sutton, on three occasions to discuss testamentary matters. The first appointment, on January 29, 2016, was to discuss changes to the 2013 will.

On March 9, 2016, the Deceased went to Notary Tétreault’s office to sign a codicil to the 2013 will appointing the respondent liquidator of his succession in place of the appellant. On the following March 22, the Deceased returned to see Notary Tétreault to sign a completely new will in which he revoked all his previous dispositions and appointed the respondent liquidator and universal legatee of his estate. This is the disputed will. [ 13 ] It was the respondent who, at the Deceased's request, found Notary Tétreault by searching the Web and who made the telephone contacts to set up the appointments.

The respondent also accompanied the Deceased to each of these appointments. On each occasion, the Deceased discussed testamentary matters with the notary in private – i.e. the respondent was not present. [ 14 ] In June 2016, the Deceased consulted his family doctor, Dr. Vincent Lamoureux, because of a skin lesion on his lower back. A biopsy of this nodule revealed that it was a malignant melanoma requiring aggressive treatment. Despite Dr. Lamoureux's explanations of the severity of this form of cancer, the Deceased refused all forms of treatment.

The same scenario repeated itself in the fall of 2017, when the Deceased consulted his doctor for a lesion this time on his thigh. [ 15 ] It was not until January 2019 that the Deceased agreed to be treated for the cancer, but he would miss appointments.

His condition worsened and, after a brief hospitalization, he died of the effects of his cancer on October 30, 2019, at a hospice in Bromont. [ 16 ] In November 2019, the respondent took steps to liquidate the estate and communicated, through his attorney, with the appellant. [ 17 ] In January of 2020, the appellant filed proceedings to annul the will, alleging that due to his state of health, the Deceased did not have the required capacity to make a will in March 2016 and, furthermore, that the respondent had unduly influenced the Deceased to dispose of his property in the respondent’s favour so that he was, in law, unworthy to inherit. [ 18 ] The evidence at trial consisted of a series of documents, some of which have already been referred to above (e.g. wills, codicils, powers of attorney and a mandate in the event of incapacity), the Deceased's medical file from 2012 to his death, a forensic psychiatry report on the capacity of the Deceased to make a will on March 22, 2016 prepared by Dr.

Pierre Gagné and various testimonies, namely: - Expert Dr. Pierre Gagné on the Deceased's capacity to make a will; - Dr. Vincent Lamoureux, the Deceased's family doctor from 2015 until his death, on observations of the Deceased's physical and mental state; - Notary Marcel Tétreault, on the circumstances surrounding the signing of the codicil of March 9, 2016 and the contentious will of March 22, 2016; - Mrs. Cynthia Belcher, a neighbor and acquaintance of the Deceased; - Mr. Gordon Kenwood, a long-time friend of the Deceased who was named as one of the residual universal legatees in the 2013 will; - Ms.

Nancy Pagé, manager of the bank branch where the Deceased had an account. Her testimony focused on two incidents that took place in the fall of 2018, during which the respondent allegedly accompanied the Deceased to the bank in order to obtain a power of attorney in his name and withdraw considerable sums of money; - Mr. Ian Taylor, the appellant; - Mr. Alexander Elias, the respondent, who denied any wrongdoing in connection with the making of the disputed will. II.

JUDGMENT IN APPEAL The Deceased's capacity to make a will [ 19 ] The judge reiterated that testamentary capacity is presumed, that it must be evaluated at the time of the will, and that the burden of proving incapacity lies with the party challenging the will. It is only when the testator’s capacity in the period surrounding the execution of the will is seriously questioned that the burden of proof shifts to the party pleading the validity of the will. [ 20 ] The judge then proceeded with a meticulous and detailed analysis of the evidence, in particular the Deceased's medical file and the testimony of Dr.

Lamoureux, the expert Dr. Gagné and Notary Tétreault. [ 21 ] He observed that, despite the significant neurocognitive impairment resulting from the 2012 stroke that affected his autonomy in certain activities of daily living, the Deceased managed to live alone, with little support, until a few weeks before his death. [ 22 ] The judge further notes that between 2012 and 2019, the Deceased executed various legal documents and made several important and complex decisions without anyone, neither the appellant nor the professionals who dealt with him, the notaries in particular, questioning his judgment or capacity.

He refers to the mandate of incapacity of December 2012 (which the appellant apparently did not deem necessary to homologate), the will of 2013, the codicil of March 9, 2016, the bank powers of attorney of 2014 and 2018 and the deed of sale of his residence in 2014.

The judge attached importance to the fact that a notary, although not medically trained, must be on the lookout for his client's capacity or inaptitude, in order to ensure that the will he drafts reflects his client's wishes. [ 23 ] The judge concluded that the Deceased, although intellectually compromised, was able to understand the deeds he was signing.

The testimony of Notary Tétreault, with regard to the contested will, supports this view. The judge rejects Dr. Gagné’s opinion since it is based only on a cognitive deficit relating to the Deceased’s memory. Dr. Gagné concludes that the Deceased would have been, at the time he signed the will, unable to adequately consider all potential heirs because of his deficient memory.

This conclusion is not only incompatible with the 2013 will (signed after the stroke) in which several heirs are benefited but also with the testimony of Notary Tétreault that the Deceased was aware upon signing the will in 2016 that he was disinheriting the appellant and his friends, beneficiaries under the 2013 will. [ 24 ] The judge preferred the testimony of the Deceased's family doctor, Dr. Lamoureux, to which he attributed « un niveau élevé de fiabilité et de crédibilité » [2] .

The witness indicated that the Deceased understood the issues involved in being diagnosed with cancer in 2016 and, above all, the delicate question of refusing treatment. Dr. Lamoureux also testified that, if he had the slightest doubt as to the Deceased's ability to make a decision regarding treatment, he would have required the intervention of a professional to assess the Deceased’s capacity to decide to refuse treatment.

The judge concluded: [101] Ainsi, dans la mesure où BTaylor comprend les enjeux quant à la délicate et importante décision médicale qu’il prend - son refus de traitement -, force est de conclure qu’il ne peut en être autrement quant au testament notarié qu’il signe le 22 mars 2016, lequel, de l’avis du Tribunal, nécessite, en l’espèce, un degré moindre d’attention, de réflexion et de compréhension; [ 25 ] In short, the judge felt that the general evidence of cognitive and memory loss did not allow him to conclude that there was an ongoing state of incapacity or weakness of mind.

Rather, the evidence shows that the Deceased had the capacity to make a will on March 22, 2016. Respondent's actions and unworthiness to succeed [ 26 ] Although the appellant does not challenge the dismissal of his arguments that the respondent was unworthy to succeed, it merits mention that the judge found that the evidence did not show that the respondent had engaged in reprehensible manoeuvres in order to induce the Deceased to consent to benefitting him under the 2016 will.

The judge underlined the long-standing business relationship and friendship between the Deceased and the respondent which, in the circumstances, could motivate the Deceased to bequeath his assets to the respondent. [ 27 ] The judge also noted that, while the appellant was involved in the Deceased's rehabilitation process after his stroke, contact subsequently diminished to monthly telephone calls.

As for the friends named in the 2013 will, the evidence is silent as to the intensity of their ties with the Deceased after his stroke and suggests rather a disengagement on their part. [ 28 ] The judge saw nothing reprehensible in the fact that the respondent accompanied the Deceased to Notary Tétreault's office, since he could not travel alone, nor in the fact that he retained the services of a notary whose office was located outside the municipality of Lac-Brome, but nevertheless close by.

He found nothing suspicious in the fact that the Deceased met with a notary other than Notary Gallagher, whose services, the evidence showed, he did not appreciate. The implication might have been different if the respondent had directed the Deceased to a notary he knew personally. [ 29 ] Notary Tétreault's testimony, which the judge considered reliable and credible, strongly supported the Deceased's free and informed consent to the signing of the contested will.

The appellant did not establish that the Deceased acted under the threats of the respondent, or even simply under the latter's undue influence, or that he used deceitful manoeuvres to arouse animosity or disinterest in the Deceased towards the heirs in the 2013 will.

The mere fact that the respondent discussed the disposition of property with the Deceased, or even sought to attract the latter's largesse, is not sufficient to invalidate the will wrote the judge. [ 30 ] The judge observed that there is nothing unreasonable or surprising about the testamentary provisions, given the context of the Deceased's life and his relationships with his family, friends and the respondent. Finally, the judge concluded that even if he accepted the testimony of Ms.

Pagé (the bank manager), that the respondent asked the Deceased to make large withdrawals in 2019 (which the respondent denies) any such reprehensible conduct would have had no influence on the testator’s decision made three years previous in 2016. III.

THE APPELLANT’S POSITION [ 31 ] The appellant’s grounds can be summarized as follows: the judge committed reviewable errors in concluding that the Deceased had the capacity to make a will on March 22, 2016 and that the testamentary provisions in that will accurately reflect his wishes. [ 32 ] The appellant criticizes the trial judge for having erred in his assessment of the evidence relating to the Deceased's capacity in March 2016. [ 33 ] First, the judge erred in considering other legal documents executed by the Deceased, notarized or not, that occurred before and after March 2016, even though no evidence had been submitted regarding his capacity to enter into them.

Nor could the judge deduce or infer that, because the Deceased had the capacity to perform certain acts in 2012, 2013, 2014 and 2018, he necessarily had the capacity to sign the codicil of March 9, 2016 and the contested will. Capacity is assessed at the time of the will (art. 707 C.C.Q. ) and at no other time. [ 34 ] Secondly, the appellant contends that the judge erred in dismissing Dr. Gagné's report in favour of Dr. Lamoureux's testimony. Dr.

Lamoureux, when testifying that the Deceased had "good judgment" during meetings in August and December 2016, was quick to point out that this expression refers only to his capacity to consent to the care that was to be provided and not to his capacity to make important patrimonial decisions. However, the judge wrongly inferred that if the Deceased was capable of consenting to care, he was necessarily capable of deciding on the disposition of his property. This inference is not supported by the evidence. The appellant adds that, at the time the contested will was signed, Dr.

Lamoureux had not yet prescribed Donepezil to the Deceased, a medication intended to help with his memory problems.

[ 35 ] Lastly, the appellant contends that the trial judge erred in law by not holding that Notary Tétreault had twice misunderstood the Deceased's wishes, which were to donate money to charities (hospitals, orphanages). The appellant submits that respondent, who received a copy of the will after it was signed on March 22, 2016, admitted the error but did not raise it until his testimony, more than 6 years later. The appellant argues in his brief that this is an additional ground to set aside the will. IV.

DISCUSSION [ 36 ] The judge correctly stated the principles applicable to testamentary capacity. [ 37 ] Since everyone is presumed to be of sound mind, the burden of proving incapacity always falls on the litigant seeking the nullity of the will. [3] Thus, the appellant needed to prove by a preponderance of evidence that the Deceased was incapacitated at the time the will was made.

This can be rebutted by proof that the Deceased was lucid when he signed the will. [4] [ 38 ] To prove incapacity, a plaintiff does not have to demonstrate that the testator was completely incapable, « mais plutôt l’incapacité de comprendre les dispositions testamentaires, de vouloir l’acte lui-même, d’en comprendre la nature et les conséquences ». [5] In other words, he must prove that the testator « ne jouissait pas suffisamment de ses facultés intellectuelles pour comprendre et apprécier raisonnablement la portée de ses dispositions testamentaires ». [6] [ 39 ] Proving incapacity or lucidity at the time a will was made is not without difficulty.

It can be proven by any means, such as extrinsic circumstances including psychiatric expertise, other writings of the Deceased and the testimony of persons in contact with the Deceased around the time that the will was signed. [7] [ 40 ] Since the determination of capacity is a question of fact, the appellant's burden before the Court is demanding [8] - i.e. the standard of palpable and overriding error in the judge’s understanding of the evidence. [ 41 ] Since the onus was on the appellant to demonstrate an ongoing state of incapacity on the part of the Deceased at the time the will was signed, the judge did not err by considering that, between the occurrence of his stroke and his death, the Deceased concluded a series of important legal transactions without anyone, including the appellant, showing concern as to his capacity to do so.

Above all, the fact that the appellant never felt it appropriate to have the incapacity mandate homologated is a compelling indication that, despite the cognitive decline resulting from the 2012 stroke, the Deceased's ability to make decisions for the conduct of his personal affairs was not a source of concern for the appellant. Cross-examined on this question, he replied: “Barry could function. (…) And live day to day.” [ 42 ] The judge continued his analysis to consider the medical evidence. Contrary to the appellant's contention, he did not err by giving weight to Dr.

Lamoureux's testimony and preferring it to that of expert Dr. Gagné. His testimony, admittedly, was limited to a clinical context and focused on the Deceased's capacity to consent to care for his melanoma, not on his capacity to make decisions on the disposition of his assets upon death. However, Dr. Lamoureux is one of the few people who was able to testify to the Deceased's intellectual capacities contemporaneously with the signing of the will, having met him on a few occasions in 2016 due to the diagnosis of skin cancer.

The Deceased’s ability to understand explanations of the serious illness he was suffering from and the choices available to him is significant in assessing his intellectual ability to understand relatively complex situations and make important decisions. The judge’s reasoning in such regard is not erroneous as this is an element that, when considered with others, constitutes an indicator of the Deceased's intellectual faculties in the months preceding and following the signing of the disputed will. [ 43 ] In connection with Dr.

Lamoureux's testimony, it is noteworthy that it was not until September 2019 that he began to seriously question the Deceased's intellectual capacities and judgment. Indeed, on September 3, 2019, he noted in the medical file that the patient no longer understood the nature of his illness and treatments, that he seemed unfit to care for himself and to manage his property: « le tout semble précaire ».

On the following October 1, he noted in the file that a protective regime should be considered for the management of the Deceased's assets in the event of signs of squandering by relatives. [ 44 ] Otherwise, between 2015 and September 2019, Dr. Lamoureux was not concerned with his patient's ability to live independently. He observed that, the Deceased was in good general health and there did not appear any ongoing deterioration from the stroke in 2012. [ 45 ] In comparison, Dr. Gagné's report is based on the Deceased's medical file, in large part on his

interpretation of Dr. Lamoureux's notes. He had no firsthand knowledge of the Deceased’s condition. [ 46 ] Contrary to Dr. Gagné’s assertion that the Deceased deficient memory would cause him to forget other potential heirs (i.e. the appellant as his only family and the friends benefitted by the 2013 will), it does not appear surprising (nor indicative of lack of capacity) that in 2016, having little contact with the appellant, the Deceased would seek to benefit the person who was, at that time, closest to him and most present in his life. [ 47 ] Dr.

Gagné mentions that the Deceased’s cognitive decline would make him vulnerable to suggestion. However, there is no proof in the record of any such suggestions. [ 48 ] The judge described as highly credible and reliable the testimony of Notary Tétreault, the other direct witness to the Deceased's behaviour in March 2016, and more specifically during the signing of the contested will. Notary Tétreault testified that he saw nothing abnormal when he met the Deceased on March 9, talked to him on the phone during the following week to receive his new instructions and read and signed the disputed will on March 22.

He concludes his testimony with the following statement: R - Je vous disais, maintes et maintes fois durant ma carrière, j'ai demandé des opinions médicales pour des clients que je voyais qui avaient ... qui étaient pas tout à fait là. Monsieur Taylor, pour moi, là, j'ai pas eu de soupçon. […]

[ 49 ] Though the role of the notary is not to verify the testator's capacity, he or she should refuse to receive the document if the testator appears manifestly incapable. [9] That said, a notary’s impression of mental health is as valid as the impression of any other ordinary witness. [10] [ 50 ] Thus, it was on a consideration of the evidence as a whole that the judge concluded that the Deceased, on March 22, 2016, had the requisite intellectual faculties, and therefore the capacity, to make the will.

His careful and detailed analysis of the evidence is free of errors that might justify the Court's intervention.

The mere fact that there are some elements in the evidence showing signs of deterioration of mental faculties does not mean that the appellant has succeeded in demonstrating by a preponderance of the evidence a habitual state of incapacity on the part of the Deceased. [11] That the proof could be said to raise a doubt in this respect, is insufficient. [ 51 ] The argument based on alleged errors made by Notary Tétreault, so that the will did not reflect the wishes expressed by the Deceased is inadmissible in the absence of a procedure in improbation.

This formal procedure is necessary when a party alleges that the notary did not reflect a testator’s instructions. As the Court pointed out in Succession de Ashegh : [12] [20] D’aucuns pourraient prétendre, à la lecture des paragraphes [84] et [85], que le juge retient que la notaire Corbin n’aurait pas correctement traduit dans son acte la volonté clairement exprimée par le défunt.

Si tel est le cas, la notaire Corbin aurait ainsi commis un faux, qualifié d’intellectuel, en ce que, par erreur ou inadvertance, elle aurait fait défaut de reproduire avec exactitude la volonté du défunt qu’elle avait mission de constater. Or, selon l’

article 2821 C.c.Q. , une inscription de faux est nécessaire lorsqu’une

partie cherche à contredire en pareilles circonstances une énonciation dans l’acte notarié. Le tribunal doit d’ailleurs soulever d’office la nécessité d’une telle procédure formaliste régie par les articles 258 à 260 C.p.c . [ 52 ] The appellant did not file improbation proceedings nor make objections during the notary’s testimony.

Consequently, it cannot be argued in appeal that aside from the issue of capacity, the will does not reflect the Deceased’s wishes. [ 53 ] Otherwise, Notary Tétreault's testimony on the instructions he received is unambiguous: the Deceased indicated to him that he wished to make the respondent his sole heir and liquidator of his succession. He never mentioned donations to charities, hospitals or orphanages. FOR ALL THESE REASONS, THE COURT: [ 54 ] DISMISSES the appeal with legal costs. MARK SCHRAGER, J.A. JOCELYN F. RANCOURT, J.A. STEPHEN W. HAMILTON, J.A.

Mtre Benoit Galipeau ARCHER CONSEILLERS JURIDIQUES For the appellant Mtre Luise Arrais Paiva Rodrigues CABINET GELBER LIVERMAN For the respondent Date of hearing: January 30, 2024