2017 QCCS 4791, 2017 QCCS 4791

Estate of Zarnon 2017 QCCS 4791 SUPERIOR COURT CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-14-050052-166 DATE: October 10, 2017 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE CHANTAL CORRIVEAU, J.S.C. ______________________________________________________________________ IN THE ESTATE OF THE LATE WILLIAM ALFRED ZARNON ANGELIA REAGAN CAMPBELL Applicant v. KARINA A. ZARNON LINDA C.

ZARNON Respondents and TANGERINE BANK and BANK OF MONTREAL Mis-en-cause ______________________________________________________________________ TRANSCRIPTION OF A JUDGMENT RENDERED ORALLY ON SEPTEMBER 26 TH , 2017 ______________________________________________________________________ [ 1 ] THE COURT is seized with the Application of Mrs. Angelia Reagan Campbell to be appointed as liquidator/administrator to the Estate of the Late William Zarnon in the Province of Quebec (Art. 3101 of the Civil Code of Quebec and Art. 302 and 303(2) and (5) of the Code of Civil Procedure). [ 2 ] Mrs.

Campbell has already been appointed as Executrix (liquidator) to the Estate of Mr. Zarnon by judgment rendered in Tennessee dated June 10 th , 2016 probating the Last Will and Testament of Mr. Zarnon following his passing away on September 3 rd , 2015. [ 3 ] Mr. Zarnon’s last Will is dated February 27, 2015 and appoints Mrs. Campbell Executrix, by which he left all net proceeds of the liquidation of his assets « OF EVERY KIND WHATSOEVER AND WHEREVER SITUATED EQUALLY, to be divided between Mr.

Zarnon’s two daughters, Karina and Linda ». [ 4 ] In its first paragraph, the Will alleged as Exhibit P-2, states the following: « I, WILLIAM A. ZARNON OF SEVIER COUNTY, TENNESSEE, BEING OF SOUND MIND AND DISPOSING MEMORY, DO HEREBY MAKE, PUBLISH AND DECLARE THIS INSTRUMENT TO BE MY LAST WILL AND TESTAMENT, HEREBY REVOKING AND CANCELLING ALL FORMER WILLS AND CODICILS EVER MADE BY ME. THIS WILL SUPERSEDES THE WILL MADE BY

DAVID A. ALTRO ON FEBRUARY 19 TH , 1997 AND WITNESSED BY BERNARD BRISEBOIS AND JULIE MAINVILLE ». [ 5 ] Although the Will revoked previous wills and specifically referred to a will from 1997, Mr.

Zarnon had drafted two (2) other previous wills, one dated February 2 nd , 2015 by the same attorney in Tennessee, which is Exhibit LZ-30, and another one in 1999 before Notary Altro, which is Exhibit P-5. [ 6 ] The will dated February 2 nd , 2015 (Exhibit LZ-30) signed in Tennessee is identical to the will dated February 27, 2015 (Exhibit P-2), save and except for the added sentence referring to the fact that it supersedes the 1997 will signed before Notary Altro.

There is no mention to the 1999 will (Exhibit P-5) in the Will Exhibit P-2. [ 7 ] Sections 765 and 770 of the Civil Code of Quebec apply and make it clear that any prior wills and codicils, were annulled, first by the February 2 nd , 2015 will and then again, by the February 27, 2015 will. [ 8 ] However, I will proceed with the rest of the analysis. I will now address the Cross-demand instituted by Mrs.

Karina Zarnon. [ 9 ] The Court is seized by the Cross-demand of Karina Zarnon in order to declare that the 1999 will (Exhibit P-5) signed before Notary Altro is binding the parties and supersedes the will (Exhibit P-2). [ 10 ] In support of her argument, Karina Zarnon argues: 1 st : that her father’s residence remained in Montreal and not in Tennessee; 2 nd : that her father’s intention was to maintain the provisions of the 1999 will (Exhibit P-5) with regards to the Canadian assets; 3 rd : that the Will (Exhibit P-2), having specifically stated a renunciation to the one of 1997, meant that the 1999 Will was still in force with regards to Canadian assets. [ 11 ] Going back to the 1999 Will, at the time that it was drafted, Mr.

Zarnon’s wife, the mother of the two (2) daughters, was still alive, she passed away in 2004. [ 12 ] As the proof showed, since 1978, Mr. Zarnon and his wife had an antique business in Tennessee where they owned a home. However, up until 2007, Mr. Zarnon kept a property in Montreal where he came to spend undetermined amounts of time, until it was sold in 2007 or 2008. [ 13 ] Although Mr. Zarnon kept a Canadian passport, a hospital card and a Medicare card until his death, as of 2014, he formalized his move and residency in the United States.

It is worth mentioning that he was holding a Certificate of Naturalization in United States that had been issued on March 20 th , 1997, which is Exhibit P-7. As of July 2014, the tax assessments, reassessments along with the tax accounting documents, established his formal residency in United States. I therefore rely on Exhibits LZ-1, LZ-17 and LZ-28. The American residency of Mr. Zarnon since 2014 is unequivocal. [ 14 ] Concerning the second and the third arguments raised by Mrs. Karina Zarnon in her cross-demand, they must also fail. As stated before,

Section 765 and 770 C.C.Q. make it clear, along with the rules of

interpretation, that the wills dated in 2015 supersede the prior wills. The one drafted in February 27, 2015 supersedes the one drafted on February 2 nd , 2015, which itself had the effect of annulling the 1999 will and therefore the 1997 will. There cannot be another

interpretation of Mr. Zarnon’s intention. Nothing can support the argument that the will Exhibit P-2 would only concern the American assets leaving the Canadian assets under separate provisions. [ 15 ] The Cross-demand must fail as the Last Will and Testament is the will Exhibit P-2 and therefore the Application to name Mrs. Campbell Executrix shall be granted.

[16] Now, the Court will address Mrs. Linda Zarnon’s claim to have the proceedings instituted by Karina Zarnon declared abusive. [17] Following the death of Mr. Zarnon in 2015 and the probation of the February 27, 2015 will in Tennessee in June 2016, KarinaZarnon nevertheless initiated proceedings in Quebec dated July 26, 2016, asking for the probation of the 1999 will. [18] It is worth mentioning that in the 1999 will, Mr. Zarnon had left all of his assets to his wife.

Should she have predeceased him,he then instituted Karina his general legatee and he gave Linda a $25,000 donation, along with $50,000 donations to each of hisgrandchildren. [19] At trial, we learned that the Executrix had distributed to both Linda and Karina amounts of about $117,500.00 each, betweenDecember 2015 and July 2016 under the will Exhibit P-2. [20] Nevertheless, Karina has instituted her Court proceedings in Quebec in the Court file number 500-14-049828-163. In thoseproceedings, Mrs.

Karina Zarnon was asking the Court to probate the 1999 will without mentioning the 2015 will (Exhibit P-2) nor theappointment of Mrs. Campbell as Executrix. There is actually about $1,500,000.00 in cash investments in Quebec that have to beliquidated to the benefit of the heirs. [21] Linda Zarnon is now asking the Court to declare that the motion taken by Karina Zarnon in July 2016 in file number 500-14-049828-163 is abusive and that her defense and cross demand in the present file is also abusive. [22] We all know that the standard to declare that a procedure is abusive is very high.

However, in this instance, the Court concludesthat Karina Zarnon’s position and proceedings are abusive. [23] In taking her motion to probate the 1999 will (Exhibit P-5), Karina never mentioned the will (Exhibit P-2), although she knewthat the will had been probated in Tennessee. She had received over a $100,000.00 under the will (Exhibit P-2) and then acted before theCourt in Quebec without any transparency. [24] The fact that the Executrix was not named in the proceedings forced Linda Zarnon to defend herself against this frivolousaction.

The recourse was abandoned in October 2015 by a desistment (Notice of discontinuance Exhibit LZ-15) under

Section 213 of theCivil Code of Procedure. [25] In defense and cross-demand Karina Zarnon tried to argue the fictitious argument that Mr. Zarnon had never become anAmerican resident. Here again the argument had no merit and forced Linda to collect documentation to contradict that statement. AgainI am referring to Exhibits LZ-1, LZ-17 and LZ-28 amongst others. [26] At trial, Karina Zarnon‘s lawyer based his argument on the 1951 Supreme Court of Canada case of Bégin vs.

Bilodeau, (SCC), 1951 RCS 699, which had been completely set aside by the provisions of the Quebec Civil Code under Sections 765and 770 in force since 1994. [27] The recourse had no merit whatsoever but seems to have been taken in total disregard for truthfulness. The conditions toconclude to the abusive character of those proceedings, as stated in the Court of Appeal case of Charland c. Lessard on January 12, 2015(2015 QCCA 14) are met. [28] So here are my conclusions: THEREFORE THE COURT,

IN THE PRINCIPAL APPLICATION : [ 29 ] DECLARES that the will dated February 27, 2015 by William A. Zarnon, Exhibit P-2, is his last Will and Testament; [ 30 ] DECLARES that in conformity with this will, the Court hereby appoints Angelia Reagan Campbell as Executrix of the Estate of the Late William A.

Zarnon in connection with the liquidation of assets located in Canada; [ 31 ] REJECTS the Cross demand instituted by Karina Zarnon; [ 32 ] GRANTS in part the Cross demand instituted by Linda Zarnon; [ 33 ] DECLARES that the proceedings instituted by Karina Zarnon in the file no.500-14-049828-163 are abusive according to Articles 51 et al . of the Code of Civil Procedure; [ 34 ] DECLARES that the proceedings in this file instituted by Karina Zarnon entitled Contestation and cross-demand are abusive according to Articles 51 et al. of the Code of Civil Procedure; [ 35 ] RESERVES the rights of Linda Zarnon to claim damages in the form of legal fees and disbursements incurred in Quebec according to Articles 54 of the Code of Civil Procedure.; [ 36 ] THE WHOLE WITH LEGAL COSTS against Karina Zarnon. __________________________________ CHANTAL CORRIVEAU, J.S.C.

Mes Marie-Lou Laprise and Barry Landy Spiegel Sohmer Attorneys for Applicant Me Sylvie Grenier Sternthal, Katznelson, Montigny s.e.n.c.r.l. Attorney for Linda Zarnon, Respondent Me Lazar Sarna Sarna Neudorfer Attorney for Karina Zarnon, Respondent Date of hearing: September 25 and 26, 2017