Canada: Commentary On Caouette c. Boutin-Jacques (Succession De) - Non-Compliance With Formalities And Good Faith In The Liquidation Of A Succession

Last Updated: February 26 2013
Article by Antoine Aylwin


In theory, when liquidating a succession, publication formalities must be observed so that the various creditors can present themselves and claim their due. This formality also gives the successors an overall view of the assets and liabilities of the succession before deciding whether or not to accept it.

But these formalities often go unobserved, especially when a succession has few assets and is of little value. In the matter of Caouette v. Boutin Jacques (Succession de),1 the court had to rule on what impact the absence of formalities had on an action for hidden defect that was brought after the succession liquidation was completed.


The court congratulated the lawyers and parties for agreeing on the facts and filing a joint motion for the adjudication of an issue of law based on the parties' affidavits. The court also commended their efforts to frame the debate and avoid additional costs.2

In this particular case, it was only 17 months after the heirs had accepted the succession that the plaintiff presented a claim against that succession for hidden defects in a house that he had bought from the decedent.

The chronological sequence of events can be summarized as follows:

  • November 10, 2003: Ms. Boutin sold her home to the plaintiff for $50,000;
  • October 24, 2009: Ms. Boutin passed away, and her will provided that the residue of her property be partitioned equally between her four (4) children;
  • December 29, 2009: the four heirs of Ms. Boutin partitioned the sum of $4,500 ($1,125 each); the heirs neither made an inventory nor published a notice of closure;
  • May 25, 2011: "[TRANSLATION] The plaintiff sent a formal notice to Ms. Boutin's heirs, claiming $38,000 for hidden defect."3

The parties agreed that the defendants were in good faith and were unaware of any hidden defect in the abovementioned residence.


Both parties admitted that some of the succession liquidation rules had not been observed, including publication of the inventory and notice of closure. The parties submitted different positions to the court as to the impact of this absence of liquidation formalities.

The plaintiff argued that under article 799 C.C.Q., the heirs were responsible for all of the succession's debts resulting from that breach, including the action for hidden defect, even if the debt exceeded the value of the property they took:

799. [...]

If they give their consent, the heirs, and the successors having by that fact become heirs, are liable for the debts of the succession beyond the value of the property they take.

In response, the heirs claimed that even if the formalities had been observed, the plaintiff would only have been able to collect the $4,500 of the succession, since his claim for hidden defect would have been listed in the inventory. What is more, the defendants add that since the heirs were in good faith, their liability in respect of the succession should be reduced to the value of the property that they took in accordance with article 835 C.C.Q.:

835. An heir having assumed payment of the debts of the succession or being liable for them under the rules of this title may, if he was in good faith, move that the court reduce his liability or limit it to the value of the property he has taken if new circumstances substantially change the extent of his liability, including, but not limited to, his discovery of new facts, or the coming forward of a creditor of whose existence he could not have been aware when he assumed the liability.

The court first stated the principles that apply to this case:

  • The obligation of warranty upon the sale of the immoveable was passed to the heirs pursuant to article 1441 C.C.Q. 
  • The debt arising from this obligation of warranty constitutes a debt of the succession. 
  • The heirs are not, at least in theory, bound by the debt obligations of the deceased to an extent greater than the value of the property they received pursuant to article 125 C.C.Q. 
  • Some exceptions apply to this last principle; for instance, where there is no inventory, the liability of the heirs will be incurred even beyond the value of the property that they take pursuant to articles 640 and 800 of the C.C.Q. 
  • As for heirs who fall under that last category, article 135 C.C.Q. provides for the criteria under which it might be possible to reduce liability where the heirs are acting in good faith.

The court insisted on two key elements: that the heirs were in good faith and the hidden defect on which the debt hinged was absolutely unknown to the heirs at the time the succession was liquidated. In fact, it was only one year later that the plaintiff learned the house had hidden defects. What arises from all this is that even if the formalities had been observed, the plaintiff would not have even known that he had a debt against the succession at the time the inventory was drawn up and published. The court reminds us of the three conditions that must be met for article 835 C.C.Q. to apply:

a) the good faith of the heir liable to the debts;

b) the discovery of new facts or the coming forward of a creditor whose existence could not have been known;

c) a substantial change in the extent of the heir's liability.

The court found that these criteria had been met. But more specifically, as regards the last criterion, the court ruled that going from receiving $1,125 net to having to pay $10,000 for hidden defects qualifies as a substantial change in the conditions under which one might be willing to accept a succession.

Consequently, the court found that article 835 C.C.Q. applies perfectly in this case, and agreed to limit the heirs' liability to the amount that they received, namely a total of $4,500.


This is a good case study for the application of article 835 C.C.Q. The court had to choose between either compliance with the formalities that allow creditors and debtors to be called and assert their rights over the succession or the liability of heirs, which can be neither absolute nor infinite.

The court's recognition of the heirs' good faith is important and results from its analysis of the finality of the provision requiring compliance with formalities; the court questions whether such compliance would have made a difference, a very interesting approach in terms of implementing article 835 C.C.Q.

The liquidation formalities of successions are regularly disregarded, especially in situations where there is no dispute and the amount at stake is negligible. In fact, the formalities in a succession for $4,500 would entail costs representing a significant portion of the succession, which certainly discourages people from following these rules. While the courts should definitely not encourage such practices, the impacts must be limited and the notions of reasonableness and proportionality honoured, keeping in mind that these standards are not of public interest.


This decision should not be seen as an encouragement to flout the formalities prescribed by law. Compliance remains the best protection against any eventuality or claim that might crop up after a succession is liquidated. Still, liability can be limited when rights are exercised in good faith. And there is also the principle of minimis non curat lex, which holds that the courts cannot reproach the parties for failing to observe details the effects of which are too small to be of any real consequence.

From a technical perspective, this is a wonderful lesson on use of procedure; in the space of a single day, the parties held a trial that determined their rights, and they achieved this by agreeing on the admissions and being concise.

In those succession cases where the means used exceed the end goal of the dispute, emulating the parties in Caouette v. Boutin-Jacques would be beneficial. This would make determining the parties' respective rights easier, a task that could be completed within a timeframe and at a cost that are both reasonable and proportionate.


1 2012 QCCS 6283, EYB 2012-215548 (S.C.).

2 Id., par. 28.

3 Id., par. 6.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.