2013 QCCS 5774, 2013 QCCS 5774

Saad (Estate of) 2013 QCCS 5774 JS 1061 SUPERIOR COURT CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-17-068612-111 500-17-068888-117 DATE: November 12, 2013 ______________________________________________________________________ BY: THE HONOURABLE KIRKLAND CASGRAIN, J.S.C ______________________________________________________________________ NO 500-17-068612-111 IN THE MATTER OF THE ESTATE OF THE LATE RAYMOND SAAD SAM SAAD Petitioner vs. BILL SAAD and MICHEL SAAD Respondents NO 500-17-068888-117 IN THE MATTER OF THE ESTATE OF THE LATE RAYMOND SAAD BILL SAAD and MICHEL SAAD PETITIONERS vs.

SAM SAAD RESPONDENT ______________________________________________________________________ ______________________________________________________________________ JUDGMENT ______________________________________________________________________ I THE PROCEDURES [ 1 ] Sam Saad ("Sam") is asking that his father's last will and testament dated December 1 st , 2010 which appointed him as liquidator be probated and that his brothers Bill Saad ("Bill") and Michel ("Michel"), be ordered to stop interfering with his administration and liquidation of his father's estate (500-17-068612-111). [ 2 ] Initially, Bill and Michel notified their brother that they were contesting the probation.

However, they eventually decided to restrict their contestation to the replacement of their brother as liquidator, suggesting that they should be appointed as joint liquidators. [ 3 ] They also undertook an action to have their brother declared unworthy of inheriting from their father as well as from their mother who had passed away four years and a half before the father and whose estate is not yet completely liquidated (500-17-068888- 117). [ 4 ] The two cases were joined for common proof and hearing and pending the trial, the parties came to an agreement on the appointment of an independent interim liquidator.

II THE FACTS [ 5 ] Lody Keif, the parties' mother, passed away on December 16, 2006.

[ 6 ] Her last will and testament appointed Bill as liquidator of her estate. The three brothers Sam, Bill and Michel were to inherit in equal shares. [ 7 ] The mother's assets included half of the ownership of a condominium in which their father, who owned the other half, resided.

Mother and father were not living together anymore as they had separated a few years ago. [ 8 ] Understandably, the administration of the mother's estate could not be wound up before the father either left the condominium or passed away: Sam, Bill and Michel loved both of their parents. [ 9 ] Sam, in particular, seemed to be very close to this mother.

When she fell sick, he took care of her and even brought her to stay in his home with his family and later on, he found her a rest home where she could receive proper medical attention. [ 10 ] He also took control of her mother's finances as she could not manage them on her own anymore, although she was mentally alert up to her death: there were bills to be paid and various errands to be made. To this effect, Sam had his mother's debit and credit card. [ 11 ] Sam took some of his mother's money for himself and his family.

Small amounts, but amounts that came to total about $8500 over the course of six months. [ 12 ] Sam was experiencing financial difficulties. Because they were small amounts, he felt his mother did not mind. And he needed the money. [ 13 ] The evidence given at trial suggests that the mother knew about all or most of these withdrawals or purchases and that she accepted this without complaining. [ 14 ] However, Bill and Michel did not agree.

After their mother's death, they asked Sam's that he reimburse the estate. [ 15 ] Sam told them that he would. [ 16 ] But he never did. [ 17 ] The years went by. [ 18 ] The father died in late May of 2011. [ 19 ] Six months before his death, the father's health was starting to fail and he signed a will in the presence of two witnesses. [ 20 ] Sam prepared the document that was signed and became the will. [ 21 ] The will appointed Sam as liquidator and provided for the grandchildren to receive a certain sum of money and the rest to be distributed equally amongst the three brothers. [ 22 ] Also, at the bottom of the will, there were written annotations made by the father which stated the following : " Prêts dus : par Michel 81,000 — par Sam 50,000 — " [ 23 ] Bill and Michel were unaware of this will until it was divulged to them by Sam. [ 24 ] They were surprised. [ 25 ] They testified that their father was weary of Sam's ability to administer his own finances — why on earth had he appointed Sam as liquidator of his estate? [ 26 ] As the weeks and months went by, their suspicion grew. [ 27 ] As shown at trial, Sam's financial situation had not improved since the death of this mother. [ 28 ] Sam borrowed money from everyone.

At some point, he borrowed $25,000 from Bill but had never paid him back. [ 29 ] And now, they saw that Sam owned some $50,000 to their father's estate. [ 30 ] But there was more. [ 31 ] The interim liquidator found out that on the date of the father's death, Sam went to his father's bank and withdrew a sum of $50,000 from his account… [ 32 ] Sam testified at trial that his was a gift that his father had made to him some time before his death so that he could make a down payment for a new home: his father had given him a blank cheque with his signature and Sam had written the amount on the cheque.

At his request, the bank gave him $5000 and a money order of $45,000 to his company "Café Rapide Inc.". [ 33 ] The evidence given at trial also shows that Sam offered little if any collaboration to the interim liquidator appointed by the Court and that the father's financial records, which had been managed by Sam for some time and up to his father's death, were in

disarray. III DECISION

a) Probation of the will dated December 1 st , 2010 [ 34 ] As mentioned earlier, the probation is no longer contested.

b) Replacement of Sam Saad as liquidator [ 35 ] In view of the evidence given at trial, Sam should be replaced as liquidator: the Court agrees with Bill and Michel's assessment of Sam's capacities as an administrator: simply said, Sam cannot be trusted.

c) Appointment of a replacement for Sam [ 36 ] Bill and Michel are asking to be appointed together. [ 37 ] The Court feels that it would be preferable not to appoint Michel, in view of the written annotation found on the bottom of the father's will to the effect that Michel received a loan of $81,000. [ 38 ] The Court's decision is not in any way a judgment on whether this debt should be recovered or not, and even less on Michel's character. [ 39 ] However, there is at least an apparent conflict of interest and thus the safer route for all parties concerned — and the Court refers more specifically to the grand-children — commands that only Bill be appointed.

d) Declaration of unworthiness with respect to Lody Keif's estate [ 40 ] The amounts that were taken by Sam were relatively small and it seems that the mother knew about all or most of them. This is not a case of a behaviour which is " seriously reprehensible " (article 621 C.C.). [ 41 ] Additional proof of this, if need be, is that Bill and Michel agreed to allow Sam an extended period of time for reimbursement.

e) Declaration of unworthiness with respect to the late Raymond Saad's estate [ 42 ] The standard of proof applicable in civil matters is the balance of probabilities.

In other words, the Court does not have to be convinced beyond a reasonable doubt to decide this matter one way or the other. [ 43 ] In view of the evidence given at trial and using this standard of proof, the Court concludes that Sam unlawfully cashed a sum of $50,000 out of his father's bank account on the day of this father's death. [ 44 ] Sam's testimony is not credible. [ 45 ] Here are a few of the questions that come to mind with Sam's testimony : — why $50,000? — why was the cheque blank to begin with? — why on the day of his father's death? — why are there two cheques? — why is there a cheque for $45,000 to Sam's company if it was to be used as a cash down for a house? — and where's the money now?

Was it deposited for a new home? [ 46 ] The conclusion is that Sam took advantage of his father " in a seriously reprehensible manner ".

f) Costs [ 47 ] In view of the circumstances, costs will be granted against Sam, in both cases. FOR THESE REASONS, THE COURT: DECLARES that the will dated December 1, 2010 and produced as exhibit R-2 in the Superior Court file no 500-17-068612-111 is the last will and testament of the late Raymond Saad; REMOVES Sam Saad as liquidator of the estate of the late Raymond Saad; APPOINTS Bill Saad as liquidator of the estate of the late Raymond Saad;

DECLARES Sam Saad unworthy of inheriting from his father the late Raymond Saad; WITH COSTS in both Court cases against Sam Saad. __________________________________ KIRKLAND CASGRAIN, J.S.C. Sam Saad For himself Me Andrew Hertzog HERTZOG AND ASSOCIATES For Bill Saad and Michel Saad