Succession/ Estate Law Montreal

The death of a loved one may cause conflicts between the heirs for a number of reasons, such as surprising testamentary dispositions, a Last Will and Testament made at a time when the deceased testator was in a state of vulnerability and/or incapacitated, or if  some testamentary dispositions do not meet the prescribed form of the Civil Code of Quebec.

To palliate these situations, several  legal remedies exist, such as:

Do not hesitate to contact one of our Montreal Succession / Estate Law Montreal lawyers to assist you in these type of cases.

Motion to Declare a Last Will and Testament Null

Nullity in case of non-respect of the form

Should the Last Will and Testament not meet the principles established in articles 712 to 730 of the Civil Code of Quebec, then it is possible for an heir to petition the Court asking for the nullity of said Last Will and Testament. A Last Will and Testament may  be made in three different forms: Notarial Will, Holograph Will and a Will made in the presence of witnesses.

It should be noted that according to articles 713 and 714 of the Civil Code of Quebec, a Last Will and Testament made in one form that does not meet the requirements of that form of will, may still be valid as a will made in another form, and therefore not declared null, if it meets the requirements for validity of that other form.

"Article 713: The formalities governing the various kinds of wills shall be observed on pain of nullity."

However, if a will made in one form does not meet the requirements of that form of will, it is valid as a will made in another form if it meets the requirements for validity of that other form.

"Article 714: A holograph will or a will made in the presence of witnesses that does not meet all the requirements of that form is valid nevertheless if it meets the essential requirements thereof and if it unquestionably and unequivocally contains the last wishes of the deceased."

In the case where a Last Will and Testament is declared null, then the devolution of the Estate will be made according to the rules of the Legal Devolution of Successions stated in sections 653 and following of the Civil Code of Quebec.

Nullity due to undue influence

A Last Will and Testament may be invalidated due to the Undue Influence Doctrine if the testator was coerced by someone using reprehensible manoeuvres in order to bring the testator to consent to a liberality that he would not have consented to otherwise. It is only when the will of the testator is coerced into doing that which he does not desire to do, that the court may find that the testator was unduly influenced.

It is not illegal for someone to influence or attempt to garnish favor from a testator, so long as the free volition of the testator is not invaded. However, fraudulent acts and coercion by someone seeking considerations in their favor  may result  in  the nullity of a Last Will and Testament. In such a case, it is to be proven that the actions exercised on the testator influenced the content of the will, and therefore  did not  represent the  true wishes of the testator, but rather those of the person who exercised undue influence.

To determine if the Undue Influence Doctrine is applicable to a situation, all of the circumstances surrounding the case must be carefully examined. The Court takes into consideration factors such as the age, medical health, social standing and personality of the Testator, the sections of the Last Will and Testament, seclusion, denigration of relatives made by a person and the circumstances surrounding the signature of the Last Will and Testament.

In general, cases involving undue influence are those where the deceased was of an advanced age and in a position of vulnerability due to  illness or seclusion.

In a case pleaded by Me Pierre-Hugues Fortin and Me Philippe Duplantie in 2011, Ida Gatti, Fabrizio Gatti et al. vs. Amanda Carine Barbosa Rodrigues, the Court defined what constitutes undue influence. In this case, certain members of the late boxer Arturo Gatti’s family were alleging, amongst other things, that the wife of Mr. Gatti, Amanda Rodrigues, had manipulated and controlled him to the point where he favored her in his Last Will and Testament instead of his family. After an exhaustive review of the facts and evidence, the Court was of the opinion that  the actions of Mr. Gatti’s  wife did not constitute those of undue influence.

The Court may render the deceased’s Last Will and Testament null if it believes that his last true wishes were not expressed in said will due to the fact that the deceased was unduly influenced by way of control, seclusion and/or denigration by relatives, friends, etc. It is important to note that suspicion alone of undue influence does not constitute proof, that it must be demonstrated by facts and evidence in order to be adjudicated.

Nullity due to incapacity to make a Will

The capacity of the Testator is examined at the time of the execution of the Last Will and Testament. Therefore, it is imperative to enlighten the Court as to the mental and physical health of the testator at the time of the execution of the Last Will and Testament. Said information is necessary to determine if the Testator was able to comprehend the terms of his will and that said terms truly represented his last wishes. In the event that the proof leads to the conclusion that the Testator was not apt to express his last wishes and/or understand the impact of the terms of the Last Will and Testament, said will may be annulled due to the incapacity of the Testator to make a will.

In the cases where a person of full age benefits from a protective regime, whether it is the Advisers to Persons of Full Age, Tutors or Curators, specific articles of the Civil Code of Quebec must be taken into consideration in order to evaluate the validity and/or capacity to make a will. It is to be noted that a minor cannot dispose of any part of his property by will, except articles of little value.

"Article 709: A will made by a person of full age after he has been placed under tutorship may be confirmed by the court if the nature of its dispositions and the circumstances in which it was drawn up allow it.

Article 710: A person of full age under curatorship may not make a will. A person of full age provided with an adviser may make a will without assistance.

Article 711: A tutor, curator or adviser may not make a will on behalf of the person whom he represents or assists, either alone or jointly with that person."

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Motion to declare an heir unworthy to inherit

The Motion to declare an heir unworthy to inherit has the effect to exclude an heir of the devolution of the Estate. His share of the Estate will then be distributed either by representation or amongst the other heirs, each case being different. This exclusion applies as much to ab intestate heirs (without a Will) as well as to legatees (may they be particulars or not).

The unworthiness may be by operation of law (automatic) or be declared by the Courts.

 Any successor may, within one year after the opening of the succession or becoming aware of a cause of unworthiness, apply to the court to declare an heir unworthy if that heir is not unworthy by operation of law.

The declaration of unworthiness has a limited scope, i.e. it is only for the reasons specified in the Civil Code of Quebec that an heir may be declared unworthy of inheriting.

The grounds for unworthiness are described in the following sections of the Civil Code of Quebec:

"Article 620: The following persons are unworthy of inheriting by operation of law:

1) A person convicted of making an attempt on the life of the deceased;

2) A person deprived of parental authority over his child while his child is exempted from the obligation of providing support, in respect of that child’s succession.

Article 621: The following persons may be declared unworthy of inheriting:

1) A person guilty of cruelty towards the deceased or having otherwise behaved towards him in a seriously reprehensible manner;

2) A person who has concealed, altered or destroyed in bad faith the will of the deceased;

3) A person who had hindered the testator in the writing, amendment, or revocation of his will."

Nonetheless, when the deceased is aware of the alleged acts, our law dictates that if these acts are forgiven by the testator, he cannot be declared unworthy of inheriting.

Article 622: An heir is not unworthy of inheriting nor subject to being declared so if the deceased knew the cause of unworthiness and yet conferred a benefit on him or did not modify the liberality when he could have done so.

A good example of the application of the principles surrounding a declaration of unworthiness is found in the case Ida Gatti, Fabrizio Gatti et al. vs. Amanda Carine Barbosa Rodrigues. In this case, certain members of the family of the Late Arturo Gatti were attempting to obtain a conclusion to declare his wife unworthy of inheriting, invoking that she behaved towards her husband in a seriously reprehensible manner. Although the Court dismissed the case on the grounds of absence of legal interest of the members of the family and due to the prescription of the action of Ms. Riviera, tutor to the minor daughter of the deceased, they reviewed thoroughly the general principles applicable to these recourses.

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Probate of a Last Will and Testament

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