Canada: Commentary On Ouellet (Succession De) – A Will Cannot Be Contradicted… Unless It Contradicts The Testator!

Last Updated: September 21 2011
Article by Antoine Aylwin

This is a commentary on a Superior Court decision regarding a motion for improbation of a clause in a will that provided for distribution of the succession.


In theory, it is well-established that in the presence of a clear will, the court will refuse to intervene and change the terms of the last wishes of a deceased person.

In Ouellet (Succession de),1 a group of heirs (siblings of the deceased) filed a motion for improbation of one particular sentence of the will that provided for distribution of the succession.

The Facts

The sentence contemplated by the improbation reads as follows:

[TRANSLATION] My intention being that the siblings who survive me, and all the nephews and nieces of my predeceased siblings, may inherit in equal shares by heads and not by roots.2
(Emphasis added)

Quite simply, the applicants claim that where the text says "roots", it should read "heads" and vice versa. They claim that this must have been the deceased's intention, and that the notary misinterpreted it.

At her death, the family situation of the testator, Ms. Monique Ouellet, was as follows:

  • 5 living siblings
  • 16 nephews and nieces from her three predeceased siblings.

Using the "by heads" technique, the succession would be distributed into 21 equal shares, whereas using the "by roots" technique, it would be distributed into 8 shares, 3 of which would then be subdivided among the 16 nephews and nieces.

No argument was raised with respect to the testator's capacity to make a will when she signed her last testament at age 70.

An action like this is essentially based on the evidence submitted to the court, as the applicants have the burden of demonstrating that what the executing notary recorded in the will is contrary to the testator's intention.

The Decision

Justice Lesage states twice that the burden of evidence is high in cases of improbation (Art. 2821 C.C.Q.):

[TRANSLATION] [12] In their will, testators may state their last wishes, whatever these wishes may be, and they are not necessarily what the relatives or other people close to the testator might think. [...]
[85] A person's last wishes are sacred. It is only with the utmost prudence, and with certainty that the will or one of its clauses does not represent the testator's intention, that a court may intervene to amend it."

This reflects the text of Article 704 C.C.Q. on the freedom to make a will.

Indeed, the onus is on the applicants to prove that the notary did not accurately record the deceased's last wishes... without the deceased's testimony as to her intentions! In short, such actions pose significant evidentiary challenges, and the quality of the evidence attributable to the deceased person will make all the difference.

Here are the determining elements of the evidence in this decision:

  • The common theme among all the witnesses was surprise. The liquidator, applicants (the siblings), and respondents all expressed surprise when they learned that the will called for distribution "by heads".
  • Several witnesses, the liquidator at the fore, testified that the deceased had implied that her estate was to be distributed by roots.
  • While the text may be clear to a legal expert, it cannot be assumed that a layperson will understand the terms "root" and "head" as easily. Even the liquidator, a lawyer herself, consulted a colleague to confirm her interpretation.
  • Throughout her life, the deceased had always expressed values of equity, reflected in her will by a $2,000 deduction from one of her nieces in connection with a life insurance payout meant to cover her grandfather's funeral expenses but that she had kept for herself at the time. The judge found that applying the text of the will would not reflect the deceased's values of equity.
  • The executing notary testified that the disputed clause was not a standard provision and that it had to have reflected the will of the deceased or he would not have made the effort to include it. However, as the notary did not know the deceased and his memory was very limited, the judge did not retain his testimony.

For these reasons, the judge allowed the improbation and found that distribution of the estate should be made by roots.

The Author's Comments

This decision should not be interpreted as a sign that the courts are more open to improbation of wills to change the terms of a deceased person's last wishes.

Rather, this happens to be an exception where the evidence proved that the text of the will contradicted the words and deeds of the deceased person as to how her property was to be disposed of upon her death.

It is interesting to note that the outcome reflects the distribution of an intestate succession, using a method meant to reflect shared values and equity. The judge would probably have shown more restraint in allowing the action were the opposite being requested...


This decision is a reminder that evidence to be submitted in court must analyzed in detail before considering filing a motion for improbation. Special circumstances are required to be able to demonstrate that a notary failed to faithfully record the last wishes of a deceased person, when in theory he or she would have no interest in doing so.


1. EYB 2001-190764 (S.C.).

2. Clause cited in paragraph 4 of the annotated decision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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