r v. GEORGETTE FLEISCHER, 2013 QCCS 3964

Fleischer (Estate of) 2013 QCCS 3964 SUPERIOR COURT CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-14-040243-123 500-14-040348-120 DATE: AUGUST 16, 2013 ______________________________________________________________________ BY THE HONOURABLE DAVID R. COLLIER, J.S.C. ______________________________________________________________________ File no 500-14-040243-123 IN THE ESTATE OF THE LATE: ISIDORE FLEISCHER ______________________ AMERICAN MATHEMATICAL SOCIETY Plaintiff and SYDNEY BULMAN-FLEMING Liquidator v.

GEORGETTE FLEISCHER Defendant File no 500-14-040348-120 IN THE ESTATE OF THE LATE: ISIDORE FLEISCHER ______________________ GEORGETTE FLEISCHER Applicant and THE AMERICAN MATHEMATICAL SOCIETY and US BANK Mises-en-cause JUDGMENT Introduction [ 1 ] Ms Georgette Fleischer has filed a motion for letters of verification [1] in which she alleges that her father, the late Isidore Fleischer, died ab intestate in Montreal on March 24, 2011, leaving her as his sole legal heir and liquidator of his estate. [ 2 ] The American Mathematical Society (“AMS” or the “Society”) is an organization based in Rhode Island in the United States with over 30,000 members world-wide.

Its purpose is to foster mathematical research and scholarship. In a second action before the Court, [2] AMS asserts that it is the universal legatee of the late Isidore Fleischer by virtue of a holograph will executed by the deceased in the presence of two witnesses on June 4, 1982. [ 3 ] AMS is only able to produce a photocopy of Dr Fleischer’s will, claiming that the original cannot be found despite its best efforts.

AMS therefore requests the Court to reconstitute the will and order the liquidator named therein, Dr Sydney Bulman-Fleming, to give effect to the testator’s wishes. [ 4 ] AMS does not contest that Georgette Fleischer is the only child of the late Isidore Fleischer and his only legal heir in the event he died intestate.

[ 5 ] Ms Fleischer does not contest that the photocopy of the will filed by AMS as exhibit P-2 is an accurate and true copy of the original. Nevertheless, she asserts that the will does not reflect her father’s last wishes, because in 2009 he transferred monies from a savings account held in trust for AMS into his personal account, thereby indicating his intention to revoke his will naming AMS as universal legatee. [ 6 ] As a result, the Court is called upon to decide, as a first issue, whether there are grounds to reconstitute Isidore Fleischer’s will, as requested by AMS.

If the will is reconstituted, the second question is whether Dr. Fleischer revoked the will as contended by his daughter. It is only in the event that the will cannot be reconstituted, or was revoked, that the ab intestate succession will open and Ms Fleischer will inherit in the place of AMS. Facts [ 7 ] Isidore Fleischer devoted his life to research and teaching in the field of mathematics. He was associated with several Canadian universities, including the University of Waterloo and later the University of Montreal. [ 8 ] Dr Fleischer’s daughter Georgette was born in 1957.

Her parents separated shortly after her birth and her mother was granted custody. As a consequence, Georgette grew up with her mother in the United States, and later with relatives when her mother became ill. [ 9 ] In February 1981, Isidore Fleischer wrote to AMS advising them that he intended to make a will naming the Society as the principal beneficiary. He asked AMS for advice how to accomplish this. [3] [ 10 ] AMS and its lawyers replied that Dr Fleischer should prepare a will and that he could also name AMS a joint owner of his savings accounts, with a right of survivorship.

AMS’s attorneys wrote: [4] You are correct in your assumption that if all of your assets were jointly held at the time of your death there would be no need to have a will and your assets would pass to the surviving joint tenant without being under the jurisdiction of a probate Court. Having a will, however, would insure that all of your assets pass as you desire in the event that some asset were found which was not owned jointly with the Society.

I would suggest that in addition to changing all of your accounts to joint ownership, you have prepared a simple will leaving all your assets to the American Mathematical Society. [ 11 ] On June 4, 1982, Dr Fleischer invited his colleagues, Dr Sydney Bulman-Fleming and Dr Larry Cummings, to lunch at the University of Waterloo. It was Isidore Fleischer’s 55 th birthday and he had asked his friends to witness his will. [ 12 ] Dr Fleischer signed his handwritten will in the presence of his two colleagues, who then added their signatures as witnesses.

After lunch, the three men found a photocopier in an office and made copies of the will. Dr Sydney Bulman-Fleming, who had agreed to act as executor of the estate, received what he thought was the original copy of the will.

He put the document in his filing cabinet under “Dr Fleischer’s papers”, where it remained for almost 30 years. [ 13 ] At the hearing, both Dr Sydney Bulman-Fleming and Dr Larry Cummings recognized the photocopy of Dr Fleischer’s will, produced as exhibit P-2, as an accurate and true copy of the document they countersigned on June 4, 1982. [ 14 ] Although during the course of their careers Drs Bulman-Fleming and Cummings were members of the AMS, neither of them ever officially represented the Society. [ 15 ] For our purposes, the relevant portion of Dr Fleischer’s short, handwritten will reads as follows: I, Isidore Fleischer, currently residing at Resurrection College, Westmount Road North, Waterloo, Ontario, […] Canada, declare this to be my last Will and Testament.

I leave all my financial assets: savings, securities, savings and loan accounts, and anything of monetary value to the American Mathematical Society, P.O. Box 6248, Providence, Rhode Island 02940, USA. My family, having shown no sympathy for the values I have espoused or the life style I have chosen, I leave nothing to any relative or member of my family. [ 16 ] According to Ms Fleischer, her father made his will during a low point in their relationship, when she was studying in New York and there was considerable friction between them. In

an act of mean-spiritedness, Dr Fleischer sent a copy of the will to her in July 1982, several days before her 25 th birthday. [ 17 ] On August 13, 1982, Isidore Fleischer wrote to AMS enclosing a copy of his will.

He informed them that Dr Bulman-Fleming would look out for the Society’s interests, adding. …but I anticipate that his services will be largely superfluous since I am gradually changing the vesting of my assets to a form which will cause them to pass to the Society automatically – this has already been done with the two largest S&L accounts which include the greater portion of the assets. (Since I carry no health insurance, prolonged hospitalisation might also make the matter academic). [5] [ 18 ] In his letter, Dr Fleischer identified a bank in California where he kept documents showing the location of his US savings accounts. [ 19 ] According to the evidence, the next written communication between AMS and Dr Fleischer occurred years later in 1996, when AMS informed Dr Fleischer that it would name him a member of the honorary Fiske Society, and publicly recognize his generosity, if it was still Dr Fleischer’s intention to provide for AMS in his will. [6] [ 20 ] There is no evidence of a reply by Dr Fleischer before 2004.

In November of that year, Dr Fleischer again sent a copy of his will to AMS, and a copy of an agreement he had recently executed with his brokerage firm, transferring his securities portfolio and other

investments to the Society upon his death. In his letter, Dr Fleischer identified two savings accounts in California that he was holding in trust for AMS.

He wrote, these accounts are vested in my name in trust for the AMS and so should revert automatically to the AMS upon my death . [7] [ 21 ] On November 17, 2004, AMS wrote to confirm that it had received Dr Fleischer’s documents, adding that it had also found the “original copy” of his will in its files. [8] [ 22 ] The next day, AMS wrote once again to acknowledge receipt of the documents and to welcome Dr Fleischer as a member of the Fiske Society. [9] [ 23 ] Isidore Fleischer died on March 24, 2011.

In May, Georgette Fleischer wrote to AMS to say that she would challenge her father’s will, which left her “worse than penniless”, unless AMS agreed to allow her to act as the executor of his estate and share equally in its assets. [10] Ms Fleischer stated that she had gone through her father’s papers and identified assets totalling $160,000, of which almost $157,000 was held in two savings accounts in Dr Fleischer’s name at the US Bank in Glendale, California. [ 24 ] According to the evidence, in July 2009, Dr Fleischer transferred his savings held in trust for AMS at the Washington Mutual Bank, in the amount of $111,189, to his personal account at the US Bank. [11] The evidence does not disclose why he did this.

It appears the parties only learned of the transfer after Dr Fleischer's death. [ 25 ] The AMS did not respond to Madam Fleischer’s May 2011 letter. It searched its records for an original copy of Dr Fleischer’s will.

Meanwhile, Dr Bulman-Fleming, now retired and living in British Columbia, discovered that the document he had placed in his filing cabinet in 1982 was a photocopy of Dr Fleischer’s will, not the original. [ 26 ] Hence AMC’s action to reconstitute Dr Fleischer’s will, and Ms Fleischer’s argument that her father tacitly revoked his will in 2009 by transferring his savings, held in trust for AMS, to an account opened in his name alone at the US Bank. Questions in issue

a) Are there grounds to reconstitute Dr Fleischer’s June 4, 1982 will?

b) If the will is reconstituted, did Dr Fleischer revoke it?

c) If there is no will, is Georgette Fleischer her father’s sole legal heir and liquidator of his estate? Analysis

a) Are there grounds to reconstitute Dr Fleischer’s June 4, 1982 will? [ 27 ]

Article 774 CCQ provides that a will may be reconstituted when proof of its “contents, origin and regularity is conclusive and unequivocal”. [ 28 ]

Article 774 CCQ applies to wills probated after January 1, 1994, including those made prior to that date. [12] [ 29 ] “Conclusive proof” is a degree of proof higher than that usually required by the Court, but is not tantamount to certainty. [13] The term “unequivocal” means “not ambiguous, plain, unmistakable”. [14] [ 30 ] In the present case, the Court considers that is has conclusive and unequivocal proof that the photocopy produced as exhibit P-2 is an accurate and true copy of the original will executed by Isidore Fleischer on June 4, 1982. [ 31 ] At trial, Drs Bulman-Fleming and Cummings recognized the photocopy as corresponding to the original will.

Ms Fleischer did the same. [15] [ 32 ] Furthermore, the origin of the photocopy can be established: Drs Bulman-Fleming and Cummings testified that photocopies of the will were made immediately after it was executed by the parties; while Dr Bulman-Fleming stated that he placed a photocopy of P-2 in his file in June 1982, believing it to be the original. [ 33 ] Ms Fleischer received a copy of the will from her father in July 1982, and was aware of its contents. She testified that her father wrote to her in January 1996 to explain his will, telling her, I have not disinherited you, I have disinherited the family .

Ms Fleischer also knew from her cousin, Dr Fleischer’s investment broker, that her father had executed agreements transferring his investments to AMS upon his death. [ 34 ] Dr Fleischer’s correspondence with AMS in 1981-82 and 2004 is consistent with the testamentary intentions expressed in exhibit P-2.

The “transfer on death” agreements executed by Dr Fleischer and his broker in 2004 are also consistent with the terms of the will. [ 35 ] Although AMS had a copy of Dr Fleischer’s 1982 will in its files, its inability to locate the original will is perplexing in light of AMS’s statement in November 2004 that it had the original copy in its files.

In her oral defence, Ms Fleischer argued that AMS’s action should be dismissed because it took no measures to preserve the original will, did not carry out a diligently search for it and cannot explain its loss. [ 36 ] The evidence does not disclose how or when the original will was lost and the Court cannot conclude that AMS was at fault in

this regard. Moreover, counsel for Ms Fleischer did not produce any authority for the proposition that a person is unworthy to inherit if he loses a will through carelessness or otherwise, and the Court is not aware of any.

Accordingly, there are no evidentiary or legal grounds to dismiss AMS's action for the reason that it cannot produce an original copy of the will. [ 37 ] The loss of an original will can be established upon proof that the beneficiary conducted a diligent search for it. [16] In this case, the testimony of AMS’s Executive Director, Mr Donald McClure, that the Society carried out a thorough search of its records, satisfies this requirement. [ 38 ] A photocopy can serve as evidence of the existence of the original will. [17] In the present case, there is conclusive and unequivocal evidence that the photocopy P-2 constitutes of Dr Fleischer’s will made on June 4, 1982. [ 39 ] The reconstitution of Dr Fleischer’s will renders AMS’s application to probate the will unnecessary. [18]

b) Did Dr Fleischer revoke his will? [ 40 ] Revocation of a will or of a legacy is express or tacit. [19] In the present case, there is no allegation that Dr Fleischer expressly revoked his June 1982 will. [ 41 ] Tacit revocation may occur in one of the circumstances set out in articles 767 to 769 of the Civil Code. It may occur as,

i) a result of the destruction, tearing or erasure of a holograph will or any of its dispositions by the testator or upon his instructions, ii) the loss or destruction of the will to the knowledge of the testator who does not replace it, iii) the making by the testator of an incompatible disposition or, iv) the alienation by the testator of the bequeathed property.

Other acts done by the testator that could disclose a change in his testamentary intention do not constitute a tacit revocation – the four circumstances mentioned above are the only instances of tacit revocation recognized by the law. [20] [ 42 ] In this case, there is no question that the will was destroyed, torn or erased by Dr Fleischer, or that he made an incompatible testamentary disposition. Nor is there any evidence that Dr Fleischer was aware the original will had been lost and that he chose not to replace it.

Indeed, AMS’s November 2004 letter [21] stating that it had the original will in its possession would have reassured Dr Fleischer it was not lost. [ 43 ] Ms Fleischer claims that her father’s transfer of assets in 2009 constituted an alienation of the property bequeathed to AMS, which shows his intention to revoke his will. [ 44 ] There are several difficulties with this argument. First, by transferring his funds from the Washington Mutual Bank to US Bank, Dr Fleischer did not alienate his property.

This Court has already held that a change in the situs of bequeathed property (from the testator’s RRSP account to another of his accounts) does not amount to an alienation of the testator’s property within the meaning of

article 769 CCQ. [22] [ 45 ] Secondly, even if Dr Fleischer’s transfer of funds did constitute an alienation of his property, he did not transfer all of his bequeathed property, and accordingly he cannot be presumed to have revoked his will in its entirety. [ 46 ] Finally, the Court cannot infer from Dr Fleischer’s transfer of funds – from a trust account held for the benefit of AMS to his personal account – that he intended to revoke his will or a particular legacy.

It is clear from Dr Fleischer’s correspondence with AMS in 1981 and 1982 that he understood there to be two ways to transfer his investments and savings to the Society upon his death, either through a will or by the creation of joint or trust accounts. This is particularly evident from Dr Fleischer’s letter to AMS dated August 13, 1982, [23] where he states that his executor’s services will be largely superfluous given his decision to vest my assets in a form which will cause them to pass to the Society automatically .

As a result, when Dr Fleischer transferred his funds from the trust account in 2009, he must have known that the assets would pass to AMS under the will; nevertheless, he did nothing to alter it. [ 47 ] Although Ms Fleischer testified that her relationship with her father improved in the last years of his life, there is no evidence that he ever expressed an intention to change the terms of his will.

On the other hand, Dr Fleischer’s correspondence with AMS in 1981- 82, and again in 2004, shows a consistent intention over 22 years to bequeath his property to AMS. [ 48 ] For the above reasons, the Court concludes that Dr Fleischer did not tacitly revoke his will. [ 49 ] In light of the Court’s conclusions reconstituting Dr Fleischer’s will and finding that it is not revoked, it is not necessary to consider question

c) above respecting Ms Fleischer’s status as the sole intestate heir.

FOR THESE REASONS, THE COURT: [ 50 ] GRANTS the action in reconstitution of the American Mathematical Society; [ 51 ] DECLARES that the photocopy of the will of the late Isidore Fleischer, a copy of which is annexed to the present judgment, constitutes the last will and testament of Isidore Fleischer dated June 4, 1982, signed before witnesses, without the requirement of probate; [ 52 ] DECLARES that in conformity with the said will, Dr Sydney Bulman-Fleming holds the office of liquidator of the estate of the late Isidore Fleischer, with all its attendant responsibilities and duties; [ 53 ] DISMISSES the application for letters of verification of Ms Georgette Fleischer; [ 54 ] WITH COSTS.

__________________________________ DAVID R. COLLIER, J.S.C. Mtre Louis Brousseau Mtre Alain T.K. Nguyen Jeansonne Avocats inc. Attorneys for Georgette Fleischer Mtre Sébastien Matte Dufour Mottet Avocats Attorneys for American Mathematical Society, Dr Sydney Bulman-Fleming and the Estate of the late Isidore Fleischer Date of hearing: May 6, 2013