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 sentence contemplated by the improbation reads as
[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
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
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.
Justice Lesage states twice that the burden of evidence is high
in cases of improbation (Art. 2821 C.C.Q.):
[TRANSLATION]  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. [...]
 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
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
Here are the determining elements of the evidence in this
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
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
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
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
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