Stoneham and Tewkesbury v. Ouellet, [1979] 2 SCR 172

SUPREME COURT OF CANADA

Stoneham and Tewkesbury v. Ouellet, [1979] 2 S.C.R. 172

Date: 1979-05-01

Municipal Corporation of United District of Stoneham and Tewkesbury (Plaintiff) Appellant;

and

Roch Ouellet (Defendant) Respondent.

1978: February 10; 1979: May I.

Present: Pigeon, Dickson, Beetz, Estey and Pratte JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Wills — Vacating — Undue influence — Presump­tions — Civil Code, arts. 993, 2202.

Appeal — Evidence — Assessing the credibility of witnesses — Power of appellate court to intervene.

Two months before his death Sydney Wright made an authentic will by which he bequeated to appellant corpo­ration the principal asset in his estate, namely a large wooded piece of land, to be used as a public park , and to respondent the sum of $200. Twelve days before he died, while ill and hospitalized, he made a second authentic will by which he made respondent Ouellet his sole universal legatee. After making a lengthy analysis of the voluminous evidence the Superior Court judge concluded that the circumstantial evidence taken to­gether with the extreme weak condition of the testator constituted a body of evidence establishing that the second will did not represent the wishes of Sydney Wright, and that the action to vacate for undue influ­ence was well founded. Although the Court of Appeal found no error of law in the judgment of the trial judge, it did find five errors of fact which it characterized as obvious, and which it considered sufficient to reverse the judgment of the Superior Court. In addition to the questions of fact, this appeal also turns on the power of the Court of Appeal to intervene in a case in which the credibility of witnesses is of the first importance.

Held: The appeal should be allowed.

The errors which the Court of Appeal concluded were made by the trial judge were either not errors or were relatively unimportant. In the circumstances the Court of Appeal erred in completely retrying the case, because the errors which the trial judge was alleged to have made did not justify its intervention. What is more serious, however, the Court of Appeal retried the case without reference to the trial judge's findings as to respondent's credibility. Moreover, as respondent's tes­timony was rejected globaly by the trial judge, the Court

[Page 173]

of Appeal committed a further error in relying on certain parts of that testimony, for the reason that they were probable or corroborated by other witnesses. A review of the evidence in these circumstances is tainted by a major distortion, which vitiates the findings of the Court of Appeal that the undue influence was not clearly proven. In view of the nature of undue influence, as defined by legal commentators and the courts, in the case at bar the evidence of undue influence is to be inferred from the words, insinuations and actions of respondent as much as from the acts of the testator and the circumstances in which the disputed will was drawn up. To this must be added, by way of contrast, the circumstances in which the first will was prepared and the content of both wills, taking into account the person­ality, character and beliefs of the testator.

After reading and analysing all the evidence, it cannot be said that the trial judge manifestly erred in conclud­ing that undue influence had been proven by circum­stantial evidence, bearing in mind the fact that he did not believe respondent's deposition and, the preponder­ance of the evidence. Rather, it is the Court of Appeal which erred by substituting its assessment of the evi­dence for that of the trial judge.

So far as the presumptions of arts. 993 and 2202 C.C. are concerned, they are juris tantum and may be rebut­ted by contrary evidence, which depending on the cir­cumstances may be strong enough to not merely neutral­ize them but overturn them completely.

Finally, although the unfettered freedom to devise comes from English law, and there are analogies be­tween the concept of under influence in English law and undue influence (captation) in the civil law, this Court is very hesitant to use the English decisions and those from other provinces in a civil law matter such as this, and it is not in any way bound by its decision in Adams v. McBeath, (1896), 27 S.C.R. 13, a British Columbia case.

Mayrand v. Dussault (1907), 38 S.C.R. 460; Tou­chette v. Touchette, [1974] C.A. 575, aff. [1976] 1 S.C.R. vi; Fauteux v. Chartrain, [1959] C.S. 176; Adams v. McBeath (1896), 27 S.C.R. 13, referred to.

APPEAL from a judgment of the Court of Appeal of Quebec,[1] reversing a judgment of the Superior Court allowing an action to vacate a will. Appeal allowed.

[Page 174]

P. Delisle and Jacques Paquet for the appellant.

Jules Bernatchez, Q.C., and Francine Turgeon for the respondent.

The judgment of the Court was delivered by

BEETZ J.—This is an action to vacate a will for undue influence. In the Superior Court and the Court of Appeal, appellant also argued that the testator was insane, but in this Court it relin­quished this argument while continuing to maintain that the testator's illness and physical weak­ness made him more vulnerable to undue influence. Marquis A.C.J. of the Superior Court allowed the action and vacated the second will of Sydney Wright. The Court of Appeal reversed this judgment and dismissed the action. The appeal, with leave of this Court, is from this decision. As the Court of Appeal emphasized, the question is principally one of fact, but it also turns on the power of the Court of Appeal to intervene in a case in which the credibility of witnesses is of the first importance.

The judgment of the Superior Court has not been reported, and the decision of the Court of Appeal is only available in summary form: [1976] C.A. 436. In order to understand the unusual and complex circumstances from which the case arose, it is necessary to cite lengthy extracts from this decision and that judgment.

I—Chronology of the undisputed facts

The reasons for the unanimous decision of the Court of Appeal were written by Bernier J.A. He summarized as follows the undisputed facts of a voluminous case.

[TRANSLATION] By an earlier authentic will, recorded on June 23, 1972, Sydney Wright had bequeathed to respondent municipal corporation the principal asset in his estate, namely a large wooded piece of land, to be used as a public park.

The case at bar concerns primarily questions of fact; accordingly, in order to make sense of the many fine points of the evidence and to assess their weight, it is best to summarize chronologically the salient facts the accuracy of which is not in dispute.

[Page 175]

(a) The brothers Percy and Sydney Wright were both bachelors with no close relatives, and illiterate. They lived alone in seclusion, at their family property in Stoneham, in a house devoid of any modern conveni­ences. They lived for the most part off what they produced in a garden. This property included a large wooded piece of land, unexploited and jealously preserved in its natural state. Since they had been the victims of an armed robbery around 1965, a robbery which does not appear ever to have been cleared up, the Wrights kept a constant armed guard, day and night, at their house. From time to time the younger brother, Sydney, worked away from home for the Department of Highways. Apart from old age pension benefits (appar­ently received for them by one of their friends residing in Quebec City, Jack Thompson), their only other income came from two expropriations of rights of way for transmission lines and the rental of a parcel of land to Hydro-Quebec. They had a bank account at a branch of the Provincial Bank of Canada, in Quebec City.

(b) Roch Ouellet and his father Georges came to Stoneham in 1959 from St-Jacques in northwestern New Brunswick. Georges Ouellet operated a sawmill in Stoneham, and his son Roch did some trucking in addition to helping his father. From about 1960 on the Ouellets were regular visitors at the Wrights' home; the Wrights also visited the Ouellets from time to time. Roch Ouellet became the person whom the Wrights called on for transportation to Quebec City or elsewhere, and to perform a variety of services for a certain remuneration.

(c) On March 7, 1970 Percy Wright was admitted to the St-Francois d'Assise Hospital; he remained there for three days. The name of Roch Ouellet appeared on the admittal form as the person to be notified in the event of an emergency.

(d) On April 19, 1972 Percy Wright went to stay with Georges Ouellet; he was ill and Sydney Wright could no longer take care of him properly. He was charged $30.00 a week for room and board, and Sydney Wright went there to visit him.

(e) On May 3, 1972 Sydney Wright had Roch Ouel­let drive him to Quebec City to the office of the Hydro-Quebec notary, Stuart Wright (no relation), to see about the expropriation of a right of way for Hydro-Quebec transmission lines which he and his brother had failed to attend to since 1970; they had not responded to the notary's letters. Sydney Wright brought back the document which he and his brother were to sign to obtain the specified compensation of $2,100.

[Page 176]

(f) On May 30, 1972 Percy and Sydney Wright were admitted to the Enfant-Jésus Hospital.

(g) While he was in hospital, Percy Wright sum­moned Jack Dunn, the former secretary-treasurer of respondent corporation, and asked him to take certain steps on his behalf with Hydro-Quebec so as to obtain compensation due to them from an expropriation by Shawinigan Water and Power some ten years earlier, another matter which they had neglected to deal with. Percy Wright had initially asked Roch Ouellet to look after the matter and, on May 17, 1972, the latter had written a letter to this effect to Hydro-Quebec.

(h) On June 13, 1972 Roch Ouellet returned to the notary Wright the draft contract signed by Percy Wright (who, as he could not write, made his mark) and Sydney Wright. The notary Wright gave him a cheque for $2,100 from Hydro-Quebec made out to the Wright brothers.

(i) Percy Wright was released from the hospital that same day and returned to stay with Georges Ouellet. Sydney Wright remained in the hospital.

(j) On June 19, Percy Wright died at Georges Ouel­let's home, leaving no will. Sydney Wright became sole owner of their property. The funeral was looked after by Roch Ouellet, who told the people who had come to visit the Wrights in hospital (including Sydney McCune, Jack Dunn and Jack Thompson). The body did not lie in state and there was no funeral service, merely a religious ceremony at the cemetery. Roch Ouellet himself paid the necessary expenses, just as he had earlier seen to the payment of certain bills owed by the Wright brothers, such as property taxes.

(k) On June 20, 1972 Sydney McCune and Jack Dunn visited Sydney Wright in hospital. They suggested that he make a will and, since he had no close relatives, leave his land to respondent municipal corporation for a public park. Sydney Wright approved of the idea. McCune and Dunn asked Sydney Wright whether he had a notary looking after his affairs; when he said that he did not, they suggested the notary Wright, whom he had just been dealing with. They telephoned the latter from the hospital (but not from Sydney Wright's room), telling him of Sydney Wright's intention. The notary Wright went there the same day and received Sydney Wright's instructions. He drafted the will in his office and returned the following day with the notary Gilles Giroux. After being read, the will was signed. Sydney Wright only wanted to make a mark because of the trembling of his hand (apparently due to Parkinson's disease, which he had suffered from for several years), but as the notary insisted, he signed.

[Page 177]

(l) While he was in hospital, Sydney Wright underwent surgery for the first time, consisting in the removal of a tumor in his abdomen (neoplasia).

(m) When he left the hospital on July 14, 1972, Sydney Wright went to stay with Georges Ouellet.

(n) On July 27, 1972, Sydney Wright was readmit­ted to the hospital.

(o) On August 1, 1972, at Roch Ouellet's request, the notary Corriveau, accompanied by the notary Louise Barbeau, went to see Sydney Wright in hospital. He drafted on the spot the will which was vacated by the judgment a quo. Sydney Wright tried to sign it, and finally made his mark. Dr. Jacques Côté, the attending physician, prepared a certificate for the notary Cor­riveau stating that Sydney Wright was in full possession of his faculties at this time.

(p) On August 10 or 11, 1972, Sydney Wright underwent surgery a second time.

(q) On the evening of August 9 or 10 Adélard Roy, a lumber dealer who for several years had visited the Wright brothers hoping to buy cutting rights to their timber, having learned that Sydney Wright was in hos­pital, went to see him and once again asked him to sell. Sydney Wright told him he could not do so, as his land had been given to respondent municipal corporation to be made into a park as a memorial to his family.

(r) On August 13, 1972, Sydney Wright died in hospital at the age of 77. Roch Ouellet looked after the funeral; he told the undertaker that he had money from the estate to pay for it.

(s) In the period following the death of Sydney Wright, Roch Ouellet stored the most important furni­ture in the Wright's home at his own home. On August 24, 1972 the notary Corriveau's associate, the notary H.-Paul Martin, made an inventory of this furniture "which had been stored to preserve it from fire and theft".

(t) On January 4, 1973, respondent municipal corpo­ration brought the action to vacate the later will on the dual grounds of de facto incapacity (insanity) of the testator and absence of consent, on account of undue influence by Roch Ouellet and his family.

The disputed will reads as follows (the portion of the text reproduced in italics is handwritten; the remainder was typed in advance):

[Page 178]

IN THE YEAR NINETEEN HUNDRED AND SEVENTY TWO, on the first day of the month of August,

BEFORE MTRE BERNARD CORRIVEAU, Notary at Québec, in the Province of Québec, Canada, and MTRE Louise Barbeau, Notary at Québec, in the Province of Québec, Canada,

APPEARED:

MR. SYDNEY WRIGHT, farmer, residing at Stoneham, and now hospitalized at Hôpital de l'Enfant Jésus, in Québec,

Who made the following last Will and Testament:

I. I commend my soul to God;

2. I leave the arrangements for my funeral and burial to the discretion of my testamentory executor.

3. I hereby bequeath the universality of my property moveable and immoveable unto Mr. Roch Ouellet, residing at Stoneham, whom I hereby institute my sole universal legatee, and testamentary executor.

4. I hereby revoke all previous wills or codicils.

Whereof Act at Québec under minute number eleven thousand three hundred and eighty-six (11.386) of the minutes of notary Bernard Corriveau.

AFTER DUE READING by Notary Bernard Cor­riveau to the testator in the presence of Louise Barbeau, the testator declared in the presence of the said Notaries his inability to sign his name owing to his sickness, but put his cross, and the Notaries thereupon each signed in the presence of the other and of the testator.

X

Louise Barbeau, notary

Bernard CorriveaU, notary.

The text of the first will, which was typed in its entirety, except of course for the signatures, reads as follows:

ON THIS TWENTY-THIRD DAY OF THE MONTH OF JUNE IN THE YEAR ONE THOUSAND NINE HUNDRED SEVENTY-TWO.

BEFORE US STUART WRIGHT and GILLES GIROUX, the undersigned Notaries for the Province of Quebec, in Canada, practising at the City of Quebec in the said Province, personally came and appeared:

WILLIAM SYDNEY JOHN WRIGHT of the Vil­lage of Stoneham, Province of Quebec, Farmer.

[Page 179]

Who declared the following to be his last Will and Testament.

FIRST. I declare that I have never been married.

SECOND. I appoint my friend Jack Dunn of the Vil­lage of Stoneham, Municipal Secretary-Treasurer, as the sole Executor of this my Will and extend his powers as such beyond the year and day limited by law until all the dispositions hereof have been fully carried out and accomplished.

Should my said Executor die, resign, become inca­pable or refuse to act, I appoint in his place and stead my friend Sydney McCune also of Stoneham as the sole Executor of this Will with the same powers as it origi­nally named as such hereunder.

THIRD. I direct that all my just debts, succession duties and taxes arising out of my death, testamentary and burial expenses including the costs in connection with my cemetery lot and headstone and the endowment thereof should this be necessary, be paid out of the capital of my estate.

FOURTH. I give and bequeath the whole of my real estate of every kind consisting of a property bordering on the Talbot Highway and the mountain commonly known as "Wright Mountain" to the Municipality of the United Townships of Stoneham and Tewkesbury or its successor on condition that the municipality agrees to maintain the property as a park to be known as "Wright Park" as a memorial to our family, namely my grand-parents, Thomas Wright and his wife Matthew Wright, my parents, John Wright and his wife Margaret Cowie Tait Wright, my late brother, Percival Wright, and myself. Furthermore the Municipality must agree to keep the property as long as possible into the future in its natural state with no cutting of trees to be allowed except for those broken or diseased and those which must be removed for reasonable cause, and to provide for access to the park by the public.

FIFTH. I bequeath to my friend Roch Ouellet of Stoneham the sum of Two hundred dollars ($200.00).

SIXTH. I bequeath the residue of my estate one half to Christ Church (Anglican) of Stoneham and one half to St. Andrew's Church (Presbyterian) of Quebec.

SEVENTH. I exempt my Executor from the obligation of making a notarial inventory of my estate and direct that the declaration which will be signed for succession

[Page 180]

duty purposes be accepted in lieu thereof by all persons interested hereunder.

EIGHTH. In addition to all powers conferred by law, I give my Executor, without the intervention or consent of my beneficiaries being required, the right and power to:—

(a) sell, lease, hypothecate, pledge, exchange or otherwise dispose of all property, both moveable and immoveable of my estate it being understood that he may only dispose of my immoveable property should the Municipality not accept the bequest thereof;

(b) borrow money for my estate;

(c) compromise claims in favour of or against my estate;

(d) release any property affected by hypothec or mortgage in whole or in part for such consideration or without consideration as he may think proper;

(e) make any partition of my estate without any process of law and settle any share in my estate either by paying the same in cash or by allotting assets of my estate as he in his sole discretion may deem fair and sufficient.

NINTH. I revoke and annul all other Wills and Codicils I may heretofore have made declaring the present to be my only true Last Will and Testament.

THUS DONE AND PASSED at the said City of Quebec, on the day, month and year first above written, under the number Five thousand five hundred fifty-five — of the minutes of the said Stuart Wright.

AND the present Last Will having been read to the said Testator by the said Stuart Wright, in the presence of his said Colleague, the said Testator and the said Notaries thereupon each signed the same in the presence of both the others.

SYDNEY WRIGHT

GILLES GIROUX, notary STUART WRIGHT, notary

II—The            Superior Court judgment

After analysing the evidence at length in the first part of his judgment, the trial judge summa­rized his reasons as follows (I have numbered the grounds):

[TRANSLATION] REASONS:

(1) WHEREAS the following reasons indicate that the testator Sydney Wright did not execute the disputed will with full knowledge of the facts, that he was in an extremely weak condition, that he was no longer able to sign his name as he had done earlier, that he was kept

[Page 181]

constantly under the influence of defendant and his relatives, and finally that from a meticulous analysis of the evidence it is apparent that the said testator was the subject of undue influence by the said defendant;

(2) WHEREAS the late Sydney Wright and his older brother lived together in poverty, isolated from the Francophone population of Stoneham, with no modern conveniences such as running water and washroom, as well as electric appliances and so on, and whereas they lived off the produce of a cottage garden and certain income paid to them by cheque, and many such cheques were never cashed;

(3) WHEREAS they had a certain animosity towards Francophones, and their few friends could be counted on the fingers of one hand, including the Mayor, Sydney McCune, and especially the treasurer at that time, Jack Dunn, until the time that defendant and his family came to live in Stoneham, and defendant especially was constantly in the company of the Wright brothers, driving them to town from time to time and performing trivial services for them, for which he was paid;

(4) WHEREAS when the elder, Percy Wright, fell ill, he died at the home of the father of defendant, who was looking after the affairs of both brothers; and whereas he took him to the Mount Hermon cemetery, and had him interred without exhibiting the mortal remains first and with no last rites;

(5) WHEREAS at that time the late Percy Wright, who was the head of the family, had made no will; the testator Sydney Wright, who was then very ill, was incensed when he learned of the casual burial of his brother; he called Sydney McCune and Jack Dunn to his bedside, and told them that he wished to dispose of his property, asking them to seek the services of his notary Stuart Wright, who was no relation to him but who was responsible for handling certain expropriation matters; his friends McCune and Jack Dunn, who had no personal interest, suggested that Sydney Wright dispose of his tract of forest land of approximately 600 acres by giving it to plaintiff for the creation of a park in memory of their family, and this appealed greatly to the testator, who then requested Mr. McCune to contact the notary Wright by telephone and ask him to meet with the ailing Sydney Wright; in fact, the said notary did visit Sydney Wright, who gave him all details concern­ing the disposal of his property; these details were meticulously noted by the officiating notary, who prepared the testamentary deed in his office and returned the following morning to submit it to Sydney Wright; the latter, though he was ill, was aware of what he was doing, and decided to give the wooded tract to the

[Page 182]

municipality of Stoneham for a park, and the residue to the two Anglican and Presbyterian churches, which were of his Protestant faith, with in addition a bequest of $200.00 to Roch Ouellet;

(6) WHEREAS it should be emphasized that the testator did not wish to make a gift to defendant Roch Ouellet, stating that he had been very well paid and he owed him nothing, but the notary felt he should suggest that a gift be made nevertheless to defendant, with whom he had travelled on certain occasions, and proposed the sum of $1,000.00 which was rejected outright by the testator, and the latter then agreed to bequeath the sum of $200.00 to Roch Ouellet;

(7) WHEREAS the testator was outraged by the unworthy fashion in which defendant had buried his older brother, for whom he had a profound affection, but he nevertheless agreed to make this small bequest to defendant;

(8) WHEREAS Mayor McCune told the municipal councillors of Sydney Wright's intention to deed his wooded tract for the establishment of a park, and the corporation decided to accept this bequest in the public interest;

(9) WHEREAS defendant had learned that such a will had been made, and stated that he would obtain another, and made repeated approaches to the testator; he prepared a document in the nature of a general power of attorney to administer the property of the ailing man; the latter did not want to sign and called the nurse McKinnon, who was in charge of the area; she saw the telephone number of Jack Dunn on the record, and contacted him, so that the testator did not agree to sign the document and of course the area nurse also refused to sign as a witness;

(10) WHEREAS shortly before the trial began, defendant again went to the nurse with another copy of the document, which he claimed to have mislaid, to obtain the nurse's signature on the pretext that it was in order to obtain her address, although he had been able to contact her at the hospital and knew how he could issue her with a summons to appear in court;

(11) WHEREAS Percy Wright spoke no French and defendant did not understand English, and although Sydney Wright preferred to speak English he could make himself understood in French, it is unlikely that defendant understood certain statements allegedly made by Percy Wright that he intended to deed his land to defendant;

[Page 183]

(12) WHEREAS it was established that the Wright brothers definitely intended to keep their forest land in its natural state, and this intention was also indicated when the contractor, Adélard Roy, went to see them to buy cutting rights to the timber, and he even went to see Sydney Wright on August 13, 1973, after the will at issue was prepared, and the latter told him that he could do nothing because the whole property had been deeded to the municipality;

(13) WHEREAS at this time the testator, Sydney Wright, was very weak, and died a few days later; and he would certainly have been able to state that he had given his property to defendant if he had known the scope and significance of the deed which he was made to sign on August 1, 1972;

(14) WHEREAS defendant, knowing that Stuart Wright was the notary for the Wright brothers, could easily have discussed with the said notary the possibility of having a new will prepared; but he said nothing to him about it, and requested the services of his own notary with whom he had been dealing for several years, to obtain a signature on the disputed will which had been prepared in advance in the latter's office, apart from a space which had been left blank;

(15) WHEREAS it is impossible for the notary officiating on this latter will to have typed the following words:

The testator declared in the presence of the said Notaries his inability to sign his name,

if the defendant had not given him this information, because he had neither seen nor known Sydney Wright, and whereas at the bottom of the will there is an X with the start of a signature, which was interrupted, while in the earlier will filed as Exhibit P-2, a photocopy of which is filed as P-8, it can be seen that Sydney Wright signed his name with some effort but so that it could be identified; while his signature on Exhibit P-6, the deed concluded with Shawinigan Water and Power Company in 1948—his signature was clearly legible, which indi­cates that during this period of time his physical condi­tion had considerably deteriorated;

(16) WHEREAS plaintiff can plead the confessions made by defendant but his assertions in opposition to the action are nullified by contradictions, gratuitous and erroneous statements, and an unjustified animosity towards Mayor McCune and even Jack Dunn, and whereas he made a far-fetched and incredible statement when he said that the Wrights described them as "two-footed pigs";

[Page 184]

(17) WHEREAS there is no need to dwell further on the point, but from reading the three depositions made by defendant it is clear that the latter instigated the preparation of the last will, that his persistent ap­proaches to the invalid constituted influence of such a nature that the late Sydney Wright did not even men­tion the name of the Protestant churches which he had indicated on his first will, and was only able to mumble the name of Roch Ouellet, with the result that the officiating notary was the victim of defendant's mano­euvring, as the latter told him positively what the invalid wanted to do, remained in the room while the typed will with a blank space was completed in the presence of the beneficiary, and was present at the signature; and this from ameticulous analysis of the evidence clearly indi­cates that Sydney Wright had transferred his property to the municipality and to the Protestant churches, with a gift of $200.00 to defendant as suggested by the notary Wright, that in addition he had told the contrac­tor Adélard Roy that he had conveyed his property to the municipality, and that the general medical certifi­cate was even obtained indicating that he was of sound mind;

(18) WHEREAS the obtaining of this certificate from the officiating physician was clearly an effort to take extraordinary precautions, because the invalid gave the impression of being very feeble, his physical strength was almost exhausted, his weight was down to 100 pounds, he was trembling and was unable to sign, he had given no details on all the earlier gifts in the other will which was mentioned, and the physician who issued the certificate stated that he had not spoken to his patient, and that the physical condition of his illness was ascribed to something other than what it was;

(19) WHEREAS the claim of defendant that the testator felt animosity and hatred towards the Mayor and secretary of the municipality is incredible, as they were his close friends whom he designated as such in the will filed as P-2;

(20) WHEREAS it is impossible to accept the vari­ous versions of defendant, who maintained that the Wright brothers intended to give him everything, except for a small area of 400 square feet, that they wanted him to build a house alongside their own, and that they intended to give away all their property, whereas Sydney never intended to sign any document whatever authoriz­ing administration of his property;

(21) WHEREAS, furthermore, the said defendant cashed a cheque for $2,100.00, which was not filed and which was made out to the Wright brothers; and where—as there was no evidence that the signature had been

[Page 185]

identified and that the witnesses to the signature were present when the Wright brothers made their mark on this cheque;

(22) WHEREAS, furthermore, defendant wrongfully retained the sum of $800.00, which he later failed to return to the notary responsible for administering the estate until the time of the trial, and whereas he had even converted funds to his own use, because he stated that he had the money to repay them;

(23) WHEREAS defendant's contentions that the Wright brothers intended to give everything to him are in blatant contradiction to the categorical evidence that they intended to keep the woodland in its natural state;

(24) WHEREAS it seems pointless to list all the aspects of the depositions of defendant and all the details contained in the evidence to indicate that Sydney Wright made a will, filed as Exhibit P-2, after express­ing his intentions in detail to the notary Stuart Wright; that the latter scrupulously recorded the intentions of the testator, who then signed with full knowledge of the facts, and who subsequently, even after the will which is Exhibit P-1, stated that he had given or transferred his property to the municipality, and whereas he refused to sell cutting rights to a disinterested witness because the forest belonged at that time to the municipality, and this was only a few days after the will which was obtained by undue influence;

(25) WHEREAS defendant admitted that he deducted amounts of $10.00 from the sum of $2,100.00 for visiting Sydney Wright in hospital, although he was doing so with the obvious intent of getting him to sign a will;

(26) WHEREAS the circumstantial evidence taken together with the extremely weak condition of the testator constitute a body of evidence establishing that the said will does not represent the wishes of Sydney Wright;

(27) WHEREAS the action is well founded;

III—Errors found by the Court of Appeal in the judgment of the Superior Court

The Court of Appeal found no error of law in the judgment of the trial judge, but it did find five errors of fact which it characterized as obvious.

1. The first error was contained in the first part of the Superior Court judgment:

[TRANSLATION] It was Jack Dunn whom he [Sydney Wright] contacted when defendant [Roch Ouellet]

[Page 186]

wanted him to sign a general power of attorney in the presence of nurse McKinnon.

The Court of Appeal indicated the nature of the error:

[TRANSLATION] Sydney Wright did not ask nurse McKinnon to contact Jack Dunn on this occasion: nurse McKinnon did so on her own initiative, unknown to Sydney Wright.

This incident occurred during Sydney Wright's first stay in hospital (May 30, 1972), after Percy Wright's death. Roch Ouellet, whom she did not know, asked her to act as a witness to the signature of Sydney Wright on a document authorizing Roch Ouellet to deal with Sydney Wright's property, which he was in fact already doing. The post-mistress had also asked Roch Ouellet to obtain authorization to collect the mail. On the other hand, there is no suggestion in the evidence that Sydney Wright was unwilling to sign this general power of attorney. As a matter of caution nurse McKinnon did not want to act as a witness before checking with the person who, according to the records, was responsible for the patient, whether it was the right thing to do. In the records she found the name, address and telephone number of Jack Dunn; she concluded the latter was the person responsible, and telephoned him. Dunn was absent, and his wife asked nurse McKinnon to tell Sydney Wright not to sign before her husband had seen him. She delivered the message, and that is how the document was never signed.

The testimony of nurse McKinnon corroborated that of Roch Ouellet on this point. It was also corroborated by Jack Dunn, who stated that when he saw Sydney Wright on the matter the latter told him that the purpose of the document was to appoint Roch Ouellet administrator of his property.

It is true that nurse McKinnon contacted Jack Dunn on her own initiative when respondent asked her to act as a witness, but I am not convinced that the trial judge really erred on this point, since a little earlier he wrote:

[TRANSLATION] ERNESTINE McKINNON, the nurse in charge, knew Sydney Wright at the end of June and in early July. At some point Roch Ouellet gave her a typed document which he wanted the testator to sign. She immediately called Jack Dunn, whose telephone number was in the records, and told him about the matter, and Dunn told her "Tell him not to sign anything". This document contained, in essence, the follow­ing sentence: "I agree to Roch Ouellet being responsible

[Page 187]

for my property at Stoneham". When she returned, she told Sydney Wright of Jack Dunn's reply. Ouellet was not pleased, but Sydney Wright did not sign.

Similarly, in his ninth ground, cited above, he stated:

[TRANSLATION] WHEREAS defendant ... prepared a document in the nature of a general power of attorney to administer the property of the ailing man; the latter did not want to sign and called the nurse McKinnon, who was in charge of the area; she saw the telephone number of Jack Dunn on the record, and contacted him, so that the testator did not agree to sign the document .. .

The error, if any, is a minor one, and assuredly did not influence the trial judge's findings. Of more significance is the fact that, after receiving the Dunns' message, Sydney Wright did not sign the power of attorney. Also more significant is the actual testimony of nurse McKinnon, from which I quote some extracts, with emphasis on certain passages:

[TRANSLATION] A. Well, I was making the rounds of the patients and came into the room, and Mr. Ouellet was there with a typed document stating, as he indicated, "I agree to Roch Ouellet being responsible" — something of that kind — "for my present and future property at Stoneham". Then he asked me to sign as a witness, and I said I would not sign, that it had nothing to do with me, and just then I thought, I said: "I think Mr. Wright has another will". Then I called the persons whose names I had in the records; I left the room, saying I would call Mr. McCune. When I got there, however, it was Mr. Dunn's name, so I called Mr. Dunn. Mrs. Dunn answered, and I told her there was someone in the room who wanted Mr. Sydney Wright to sign a document. Mrs. Dunn said, "Tell Mr. Wright not to sign anything, that he will come and see him this evening". Mr. Ouellet asked me for my name and address, but I refused to give them.

…

Q. Now, when you returned to the room, did you repeat to Mr. Wright what Mrs. Dunn had told you?

[Page 188]

A. Yes.

Q. In front of Mr. Ouellet?

A. Yes.

Q. You told Mr. Wright that, that Mrs. Dunn was telling him not to sign the document?

A. Yes, that her husband would come that evening

Q. What was the reaction of Mr. Ouellet or Mr. Wright at that point, how did they react?

A. Well, Mr. Ouellet did not seem very pleased; but Mr. Wright decided not to sign anything at that time.

Q. Can you tell the Court whether Mr. Wright wanted to sign that document? You are under oath!

A. Yes ...

Q. Did he want to sign it? Tell us!

A... . I can tell you that Mr. Wright seemed like all old people who are being somewhat pressed to sign documents, he appeared to be saying: "Well, Roch Ouellet looked after me, should I give it to him or shouldn't I?" He really seemed to be upset, you know.

Q. But he didn't object to signing it, he offered no resistance?

A. Well, he offered no resistance ... like I said, I can't tell you if he wanted to sign, I am under oath, I know, but I can't tell you if he wanted to sign.

Q. And did you take the initiative in saying "He will not sign the document", the document the contents of which you have described namely "I authorize Roch Ouellet to look after my present and future property"?

A. No, I didn't make the decision to tell him "Don't sign"; what I said was "I won't sign".

Q. As a witness?

A. As a witness. Well, then, I went to see if he had really signed, because, you know, old people like that, people often come and pressure them, and then they sign under influence.

2. The Court of Appeal noted a second error:

[Page 189]

[TRANSLATION] Why these daily visits to the hos­pital, these arrangements to get his own notary to draft a will which was drafted in advance .. .

The will in fact was not prepared in advance. The notary Corriveau prepared it by hand in the hospital, on the spot, immediately after Sydney Wright told him of his wishes. The notary Corriveau stated that he knew nothing about it until Sydney Wright told him what the content of the will was to be. The only parts prepared in advance were the usual formulas of the introduction and the conclusion, which were typewritten on the will.

It is a fact that the disposing provisions of the disputed will were drafted by hand by the notary Corriveau in the testator's room. Here again, however, I do not believe that the trial judge was really mistaken. In the introductory part of his judgment he wrote: [TRANSLATION] "the mention of defendant as universal legatee was written into the stand­ard formulas to complete the document which was prepared in advance". In grounds 14 and 17 he wrote:

[TRANSLATION] ... to obtain a signature on the disput­ed will which had been prepared in advance in the latter's office, apart from a space which had been left blank;

... remained in the room while the typed will with a blank space was completed in the presence of the beneficiary, and was present at the signature. (My emphasis.)

What made the trial judge say that the will had been written in advance was two highly suspicious circumstances. He mentioned the first of these in his 15th ground. The notary wrote in advance that the testator was unable to sign. At the present day it can no longer be assumed that people are unable to sign. As the notary did not know the testator, he could only have got this information from respond­ent. Moreover, he expressly agreed to this in his testimony, although it was denied by respondent. In addition, the information was partially inaccu­rate, since the testator knew how to sign but could only do so with great difficulty, due to his trem­bling. Respondent therefore did discuss the content of the will in advance with the notary.

The other troubling circumstance is contained in the evidence. (The trial judge did not refer to it, but he is not required to refer to all points in the

[Page 190]

evidence.) Counsel pointed out to the notary that very little space was left between the typed intro­ductory part of the will and the conclusion (also typed) for specific bequests, if any. The notary replied that in that case he would have gone back to his office to draft the will. It can be inferred from this that the notary knew in advance that there would not be specific bequests, and that the disposing provisions of the will would be quite short. How could he have known this, if not from respondent?

3. The Court of Appeal found a third error in the trial judgment:

[TRANSLATION] ... the testator Sydney Wright, who was then very ill, was incensed when he learned of the casual burial of his brother; he called Sydney McCune and Jack Dunn to his bedside, and told them that he wished to dispose of his property, asking them to seek the services of his notary Stuart Wright

On this occasion Sydney Wright did not summon either Sydney McCune or Jack Dunn to him; it was they who, on their own initiative the day after Percy Wright's funeral, went to visit Sydney Wright in hospital. Sydney McCune even telephoned Jack Thompson asking him to accompany them, but he could not because he was busy.

It was not Sydney Wright who first spoke of the will; it was Sydney McCune and Jack Dunn who, after asking Sydney Wright if he had made a will, advised him to do so and to make it in favour of the municipal corporation, since he had no close relatives, so that his land could be made into a public park in honour of the Wright family.

At the time, Sydney Wright had no notary looking after his affairs. This is what he himself told the notary Corriveau when the latter asked him if the notary Wright was not working for him. The Wright brothers' notary was Cyrille Delâge, but he had had a disagreement with the latter. The notary Stuart Wright handled Hydro-Quebec's business, and it was on this account that Sydney Wright came to deal with him. Mr. Wright stated that the became acquainted with Sydney Wright when the latter came to see him on May 3 to settle the matter of the Hydro-Quebec servitude. He had not seen him since. He went to Sydney Wright's bedside on June 22 at the request of Sydney McCune and Jack Dunn; they were the ones who suggested him to Sydney Wright.

[Page 191]

The error in question is contained in the fifth ground of the aforementioned reasons.

Whether it was McCune and Dunn who took the initiative in going to Sydney Wright's bedside at the hospital, or it was the latter who asked them to come, does not seem to be a question of great importance, since it is the validity of the will of August 1, 1972 (in favour of Roch Ouellet) which is disputed, not that of the will of June 23, 1972 (in favour of the municipality). The references made by the trial judge to the way in which the first will was signed serve to highlight the circum­stances in which the second will originated.

Further, while the notary Wright may not have been the deceased's notary strictly speaking, the fact remains that he was certainly the notary whom Sydney Wright knew best, apart from the notary Delâge with whom he had had a disagreement. Moreover, the notary Wright definitely was not the notary of the legatee, as was the notary Corriveau.

4. We may turn now to the fourth error found by the Court of Appeal:

[TRANSLATION] ... and he [Sydney Wright] was only able to mumble the name of Roch Ouellet, with the result that the officiating notary [Mr. Corriveau] was the victim of defendant [Roch Ouellet]'s ma­noeuvring, as the latter told him positively what the invalid wanted to do ... (J.C. p. 1054)

With respect, I find nothing in the testimony of the notary Corriveau (the only one apart from Roch Ouellet to testify on the interview of August 1, and there is nothing about it in this testimony) to the effect that Sydney Wright mumbled Roch Ouellet's name. On the contrary, the notary Corriveau stated that there was an animated conversation between him and Sydney Wright, that "he spoke in a normal tone of voice", and that it was Sydney Wright who spontaneously gave him instructions, which were clear and precise. There is nothing there to suggest that he had difficulty in expressing himself.

The deduction made by the trial judge that Roch Ouellet had earlier indicated to the notary "what the patient wanted to do", if he is referring to the intention to make a will, that is admitted, but if he is referring to the content of the will, this deduction is contrary to the evidence. As above stated, the notary Corriveau stated

[Page 192]

that he was completely unaware of the wishes of the testator until the latter told him of them during this visit.

The word "mumble" is not found in the evi­dence, but the notary Corriveau said that the testator [TRANSLATION] "almost sat down in order to sign, and he tried, he stammered a little, finally he made his mark".

The expert witnesses disagreed as to the testa­tor's state of health, but one of them swore that he was mortally ill. He was being fed intravenously, and was intubated. He was extremely thin and there was no doubt that he was very weak, and indeed this was why the notary Corriveau finally asked for a medical certificate:

[TRANSLATION] A. Well, you know, I must tell you frankly, before the will, I did not think I would get this will, I never even thought of asking for a medical certificate, as we sometimes do; then, after the will, I said, you know, I was a little surprised at Mr. Sydney Wright's condition.

Q. In what sense?

A. I found him ... I didn't think I would be able to prepare the will, I thought he was not in a condi­tion to do so, and as he confirmed everything Ouellet had told me, it seemed to nie to be correct, as he knew what he was doing, and these seemed to be his wishes, as they were stated by him, I said that in case ... and in fact the notary Barbeau, who was with me, and who had noticed the patient's appearance, said "In case of a problem, ask for a medical certificate, and if possible ask for it today. (My emphasis.)

I have already referred above, in connection with the third error found by the Court of Appeal, to the suspicious circumstances from which it may be inferred that respondent and the notary knew the content of the will in advance. The foregoing quotation contains a sentence which tends to confirm this: "he confirmed everything Ouellet had told me"; but that is not all.

Shortly before or after the death of Percy Wright, the elder brother, respondent had consulted the notary on the possibility of the Wright

[Page 193]

brothers giving him their land, except for a 400-square-foot lot which they would reserve, and the notary replied they would do better to proceed by means of a will than by a gift. During his examina­tion on discovery, respondent swore that Sydney Wright had told him several times that he wanted to make the will in his name. He later swore that he did not know the content of the will until a day or two after it was prepared, and that it was the testator who had told him about it. However, the trial judge believed nothing of what respondent may have said, except for his admissions. The notary also testified that he did not know in advance what the content of the will would be, but it may be wondered whether the trial judge com­pletely believed him, as he wrote in his seventeenth ground:

[TRANSLATION] the officiating notary was the victim of defendant's manoeuvring, as undoubtedly the latter told him what the invalid wanted to do.

The question is thus not one of an error commit­ted by the trial judge, but of the credibility of witnesses, a point to which I will return.

5. The Court of Appeal noted a fifth and final inaccuracy:

[TRANSLATION] ... whereas Sydney never intended to sign any document whatever authorizing adminis­tration by Roch Ouellet of his property.

As I mentioned earlier, in my opinion there is no evidence to this effect. This is not what emerges from the testimony of the only people who were concerned in this matter, namely, apart from Roch Ouellet, nurse McKinnon and Jack Dunn.

This inaccuracy is contained in the twentieth ground. I refer to my earlier observations in con­nection with the first "error", and I continue to wonder why Sydney Wright never signed the power of attorney if he really wanted to do so.

IV—The errors of the Court of Appeal

On the basis of these errors committed by the trial judge, which either were not errors or were relatively unimportant, the Court of Appeal com­pletely retried the case. This was their first error, in my opinion, because the errors which the trial judge was alleged to have made did not justify intervention by the Court of Appeal.

[Page 194]

What is more serious, however, the Court of Appeal retried the case without reference to the trial judge's findings as to respondent's credibility. In this regard, in the first part of his judgment, the trial judge stated:

[TRANSLATION] The extracts and a careful reading of defendant's testimony are so riddled with contradictions that this deposition cannot be accepted in its entirety, apart from the admissions which it contains. (My emphasis.)

The Court of Appeal disposed of this question as follows:

[TRANSLATION] The trial judge dismissed the testimony of Roch Ouellet in its entirety (apart from admissions favourable to the prosecution). I do not intend to demonstrate whether this decision was justified, because 1 do not think it is necessary to do so in view of the conclusion which I have reached on the basis of the remainder of the evidence. The fact remains that the parts of the testimony which are corroborated by other witnesses, or which may be believed in view of the evidence, as a whole, must be taken as established.

and below:

[TRANSLATION] In view of the conclusion I have reached, I do not intend to consider the merits of the trial judge's decision to reject the testimony of Roch Ouellet, apart from admissions favourable to the prosecution.

The Court of Appeal neither adopted nor rejected the trial judge's findings on the matter of credibility. It ignored them, without saying why it did not accept them. The trial judge nonetheless explained his judgment by indicating numerous contradictions in respondent's testimony, and referring to an incident which occurred at the hearing: when the cross-examination of respondent touched on the amount of $800 which he had not declared in his inventory, respondent fainted. In his judgment the trial judge noted: [TRANSLA­TION) "at this point, the witness became indis­posed and the hearing was adjourned to the follow­ing May 24". Later on, because respondent was closing his eyes when he testified, his counsel thought he was going to faint again; but it was a false alarm.

Only the trial judge is in a position to weigh the effect of such circumstances.

[Page 195]

A court of appeal cannot set aside the findings of the trial judge as to a witness' credibility by saying that it does not have to decide whether the trial judge was justified in disbelieving that wit­ness, especially when the trial judge gives reasons for his disbelief. That is an error. It must accept the decision of the trial judge who saw and heard the witness, unless it has sufficient reason to act otherwise, and that is not the case here.

I say so with respect but it appears to me that the foregoing statements of the Court of Appeal contain fundamental errors.

To begin with, as I have just indicated, the Court of Appeal committed an error of principle in not accepting the findings of the trial judge as to respondent's credibility.

Secondly, as respondent's testimony was rejected globaly by the trial judge, the Court of Appeal committed a further error in relying on certain parts of that testimony, for the reason that they were probable or corroborated by other witnesses. When the trial judge rejects testimony because he finds it incredible he also, implicitly or explicitly, rejects testimony corroborating the first testimony for the same reason. Two examples come to mind. The testimony of the notary Corriveau corrobo­rates that of respondent in part. However, as we saw earlier, the trial judge indicated that he did not completely believe the notary. Similarly, respondent's father corroborated the latter's tes­timony concerning the insulting remarks made by the brothers Wright about Mayor McCune; but it is clear that the trial judge did not believe the father any more than the son on this point.

In a civil proceeding, where the rule is that of a preponderance of the evidence and the balance of probabilities, when a party testifies and is not believed it is possible for the trial judge to regard his assertions as denials and his denials as admis­sions, taking into account contradictions, hesita­tions, the time the witness takes to answer, his expression, circumstantial evidence and the evi­dence as a whole. The witness' answers then tend to establish the opposite of what the witness wants the judge to think. Thus, when respondent stated

[Page 196]

that the Wright brothers made insulting remarks concerning the municipal authorities, and denied a suggestion that it was in fact he who made these statements to the two brothers in order to discredit the municipal authorities, the trial judge was entitled to consider, whatever the reply, whether the suggestion had its effect, and he was entitled to draw deductions from it unfavourable to respond­ent.

In these circumstances the detailed review of the evidence made by the Court of Appeal, without respondent's deposition except certain parts of it which were found probable or corroborated, is a review tainted by a major distortion; in my opin­ion, this distortion vitiates the findings of the Court of Appeal that the undue influence was not clearly proven. Accordingly, it seems pointless to analyse this review. However, I would note that the Court of Appeal made another error. Respond­ent denied several times that he knew of the existence of an earlier will, but in response to a question he made an admission:

[TRANSLATION] Q. Did you know that the notary Wright had made an earlier will?

A. Yes.

The trial judge cited this admission in the first part of his judgment.

The Court of Appeal stated that this was a slip of the tongue which the prosecution did not take up. The trial judge, for his part, regarded this as an admission. How can the Court of Appeal know that this was a slip of the tongue?

V—Undue influence in law

The Civil Code does not define suggestion or undue influence, which are now regarded as synonymous; it merely deals with them in arts. 769 and 839 to amend the earlier law; these provisions do not apply in the case at bar.

However, the courts and legal commentators generally agree on the nature of undue influence. In Mayrand v. Dassault[2], a unanimous decision of this Court, Girouard J. deals with the matter as follows, at pp. 467 and 468:

[Page 197]

 [TRANSLATION] Suggestion and undue influence, that is fraud, must be proven as in ordinary cases, that is, by direct verbal or written evidence or by presump­tions (Fuzier-Herman, codes annotés, art. 901 t. 2, n. 108 and 109). The latter mode of evidence is generally used to identify fraudulent practices, which are always conducted in secrecy (C.C. Arts. 839 and 993). Com­mentators and the courts have laid down certain rules which serve as a guide. Baudry-Lacantinerie, Précis, t. 2, n. 774, tells us that there will be fraud, and suggestion or undue influence will be a cause of nullity, if for example the donee slandered the donor's presumptive heirs, or if, by invidious stratagems, he alienated the donor from his relatives with the aim of ensuring that he was given what should lawfully have been theirs. Laurent, vol. 11, n. 132, adds that undue influence assumes that the person exercising the influence does so in his own interest and by abuse of the influence which he has over the testator's mind and will. Then, in n. 134, he cites with approval a decision of the Court of Aix, in which methods of exercising undue influence are analysed. They do not vary greatly, according to that decision; they are to some extent stereotyped. The legatee resorts to schemes, lies, the most odious slanders against the presumptive heir of the testator, seeking to alienate the latter's affection for the heir and more securely appropriate his inheritance. Laurent adds, citing other decisions, that the presumptive heirs are denounced as ungrateful and wicked, anxious to seize a fortune which is already overdue. Finally Laurent, n. 135, concludes:

One fact which the court must take into account is the slanderous poison which unscrupulous hands introduce bit by bit into the mind of the elderly person.

Marcadé, t. 3, art. 901, page 407:

But if suggestion and undue influence are fraudulent; if the resolution depriving the heirs has only been adopted through lies and deceit; if the legatee uses improper schemes, disgraceful devices and misrepresentations to denigrate the heirs in the minds of their relatives and take their place, then it can be said that the act of giving is not the true reflection of the free, genuine intention of the settlor; rather, it reflects the intention of the person making him do it. (My emphasis.)

Mignault, in his Traité de droit civil canadien, in t. 4, pp. 52 and 53, discusses undue influence as follows:

[TRANSLATION] I. Of suggestion and undue influ­ence. In practice, this ground of nullity is more often

[Page 198]

raised against wills than against gifts inter vivos, because wills are made in secrecy and only known after the death of the testator, so that schemes and stratagems can be more freely employed, and are therefore more often used. However, such stratagems may well occur in connection with any gift, whether made inter vivos or mortis causa, and they may result in its nullity in either case; it is essential for the donor to act freely, and the gift which he makes to be the result of a deliberate intent.

Pothier defined suggestion as follows: "Dispositions are suggested when the testator (or the donor) wished to make the dispositions that he made in order to rid himself of the importunate demands of the person urging him to do so" (a). According to Mr. Baudry-Lacantinerie (No. 374), undue influence consists in worming one's way into someone's good graces and obtaining from him gifts depending on the degree of affection one has managed to inspire.

The legislator has not placed suggestion and undue influence among the causes of nullity of gifts, any more than in the case of wills. Indeed, there is no need for an express provision to enact such nullity, as suggestion and undue influence only result in the nullity of gifts to the extent that the donee has been fraudulent as well as indelicate; if lawful means were used for the suggestion or undue influence, the gift cannot be annulled (a). Fraud is a cause of nullity in any contract, whether by gratuitous or onerous title (art. 991).

We can therefore turn to the provision in art. 993, and say that suggestion or undue influence result in the nullity of a gift if the fraudulent manoeuvres of the donee are such that, without them, the donor would not have agree to the gift; as we have seen, however, there is no prohibition on procuring or obtaining a gift by lawful means. Thus, it would not be sufficient for the donee merely to have made a fuss over his suffering, even greatly exaggerating it, or wormed his way into the donor's good graces, even by means of self-seeking kindnesses. Fraud will have occurred and suggestion or undue influence will be a cause of nullity when, for example, the donee slandered the presumptive heirs of the donor or when, through disgraceful schemes, he alienated the donor from his relatives in order to obtain for himself what should lawfully have been theirs (b). (My emphasis.)

Chateauguay Perrault—he was not then a judge of the Superior Court—wrote in Les Mélanges Bernard Bissonnette, 1963, at pp. 458 and 459:

[Page 199]

[TRANSLATION] Self-seeking attention to the testator (such as proofs of affection, flattery, care given or services rendered with exaggerated alacrity, which may have concealed a bogus affection) and mere suggestions or advice to the testator are not in themselves acts of suggestion or undue influence that will make the will invalid. However, the manoeuvring must end there; if it takes on the character of fraud, it will be a basis for invalidating the will; as examples of this may be cited inciting animosity against the presumptive heirs, reviv­ing an old dislike, acting so as to ensure complete control over the testator's will, as by intercepting his mail, alienating the family and friends of a bedridden individual, interfering in his affairs, refusing to summon a notary to prepare a codicil or a new will; in a word, deceit or coercion in all their forms. This would be the case with an untruthful representation to the testator, by the person seeking a benefit, that he is poor and needs assistance, whereas those to whom the testator would ordinarily make a bequest are rich or well provided for. The words "suggestion and undue influence" clearly illustrate what is meant: someone who takes control of the testator's free will and indicates to him how he should bequeath his property; but what must be regarded as suggestion and undue influence will vary from one case to another, depending on the specific circumstances of the case under consideration. The testator's age, state of health and condition in life may have all played a role in the degree of resistance he is able to make to the manoeuvres focused upon him. (My emphasis.)

VI—Undue influence: the facts

What proof of undue influence is there in the case at bar? I intend to summarize only the main points.

1. Respondent told the Wright brothers that Mayor McCune was a [TRANSLATION] "two-foot­ed pig". Respondent denied this, and claimed that it was the Wright brothers who used the phrase about the Mayor, and this was alleged in his defence; but the trial judge did not believe him. Additionally, respondent was expressly contradicted by the witness Gaston Beaudry, a municipal councillor in whose presence he used this phrase. In response to a specific question, the witness Beaudry indicated that expression was used as his own by respondent.

[Page 200]

In his brief, counsel for the respondent stated that the phrase is merely [TRANSLATION] "unflat­tering. Obviously, it can be given many meanings, but several of those meanings are insulting and most of them suggest some form of turpitude.

2. Respondent told Sydney Wright that Mayor McCune had given his land to the municipality and was going to cut the dead wood on the land. The trial judge referred to this in the first part of his judgment. This insinuation could mean that the municipality was intending to disregard the terms of the first will, and have the greatest influence on the testator, prompting him to change his mind, when one thinks of his attachment to his woodland and his wish to keep it in its natural state. Respondent denied that he had said this to the testator, but admitted that he might have said it to someone, without indicating who. Apart from his admissions, the trial judge did not believe him. Counsel for the respondent argued that if Sydney Wright could have believed such an insinuation, he understood nothing about the first will. However, Sydney Wright was practically illiterate and he lacked the knowledge of a man of the law. Moreover, the first will is not in dispute.

3. Respondent interfered in the Wrights' affairs, when he knew that it was the notary Wright who was responsible for settling the estate of Percy Wright, the elder brother, and that Jack Dunn was to look after an expropriation matter. Respondent tried unsuccessfully to obtain a power of attorney from the testator.

4. Respondent learned from the municipal councillor Gaston Beaudry, if he did not already know, that Sydney Wright had bequeathed his land to the municipality to be made into a park. The news was announced to the municipal council by the Mayor. Respondent replied that [TRANSLA­TION] "The Wright brothers could not have given it to a two-footed pig like the Mayor of Stoneham", and that "That won't be the end of it". Some time later, about August 5, 6 or 7, respond­ent met Gaston Beaudry and told him: [TRANSLA­TION] "I have news for you"; he said "I have a will as well".

[Page 201]

The Court of Appeal held that according to Gaston Beaudry the matter concerned a gift and not a legacy to the municipality. In fact, in Gaston Beaudry's testimony, a gift and a legacy were mentioned: at the public meeting of the municipal council, a will and perhaps a gift were discussed.

5. On August 2, the day after the date of the will in dispute, Irma Johnston, secretary-treasurer of the municipality, wanted to speak to Sydney Wright about his dogs, which were bothering the neighbours. She telephoned respondent's parents, thinking that Sydney Wright was boarding with them. Respondent's mother told her that he had gone to Quebec City with her husband and would be returning about mid-afternoon. Respondent's mother called back a few minutes later to tell her that it was her son who was looking after the dogs, and it was respondent who actually dealt with the matter in the afternoon. In fact, Sydney Wright had already been admitted to hospital on July 27, but neither respondent's mother nor respondent said anything of this to Irma Johnston. Respond­ent said that it was because no one asked him. Respondent's mother did not remember the con­versation with Irma Johnston about Sydney Wright's dogs.

6. The disputed will was recorded on August 1 by respondent's notary, despite the notary's reluc­tance and at respondent's insistence. The interview between the testator and the notary lasted thirty to forty-five minutes. The will was drawn up in the circumstances described above, and respondent was present. The Court of Appeal said that there was nothing wrong with the legatee being present, and that respondent could not understand the dis­cussion between the testator and the notary, as it took place in English. No doubt; but this is part of the evidence which must be weighed as a whole. If in fact there had been attempts at undue influence, the mere presence of the legatee would recall them to the testator and put pressure on him.

7. Some days after the will in dispute was drafted, on about August 9 or 10, the testator refused to sell timber cutting rights to the witness Adélard Roy, because it had all been conveyed to the municipality [TRANSLATION] "for a park to be

[Page 202]

made bearing our name, the Wright name, and as a memorial".

That, in essence, is the evidence of undue influ­ence. To it must be added, by way of contrast, the circumstances in which the first will was prepared, the deposition of the notary Wright stating that he had insisted that the testator make a legacy to respondent, and the content of the first and the second wills, taking into account the personality, character and beliefs of the testator. In his brief, counsel for the respondent wondered what motive Sydney Wright could have had in giving his prop­erty to the municipality of Stoneham to be made into a public park. The answer would seem to be simple. By the first will, this retiring man was able to prolong beyond death the only rôle he had played during his lifetime, the preservation of his woodland in its natural state; whereas the second will, which bequeathed this woodland to the son of a lumberman, is a negation of his life's rôle.

The question that must be asked is whether the trial judge manifestly erred in concluding that undue influence had been proven by circumstantial evidence, bearing in mind the fact that he did not believe respondent's deposition and the preponder­ance of the evidence. For my part, and I say it with due respect for the contrary view, and after read­ing and analysing all the evidence, I cannot say that the trial judge was manifestly in error. In my opinion, it is the Court of Appeal which erred by substituting its assessment of the evidence for that of the trial judge.

The only error of law which counsel for the respondent attributed to the trial judge was that, in the first part of his judgment, he shifted the burden of proof onto the shoulders of respondent by relying on the deposition of the notary Wright, who recorded the first will. The Court of Appeal did not see this as an error, doubtless because it is not contained in the grounds in which the trial judge sets forth his reasons for judgment.

It is well established that the burden of proof can be shifted if insanity is involved. This Court reaffirmed the rule when it upheld the decision of

[Page 203]

the Court of Appeal in Touchette v. Touchette[3]. Is the same true of a case of undue influence, in view of the fact that good faith is always presumed (art. 2202 C.C.), and fraud is not presumed and must be proven (art. 993 C.C.)? I know of no decision dealing with the point, except for cases in which the argument based on incapacity and that based on undue influence tend to blend into each other.

The presumptions of arts. 993 and 2202 C.C. are juris tantum, and they may be rebutted by contrary evidence, which depending on the circum­stances may be strong enough to not merely neu­tralize them but overturn them completely. As Jean J. pointed out in Fauteux v. Chartrain[4], at p. 178:

[TRANSLATION] Proof of undue influence or sugges­tion sufficient to vitiate the consent of a testator is not an easy undertaking, for it is rare that the perpetrator of the manoeuvres employed, who stands to benefit from the gift, operates directly and openly; if he is smart, he prefers to use oblique and covert methods, which will enable him to achieve his objectives with geater certain­ty and discretion.

The judge, who is responsible for deciding whether the manoeuvres employed were such as to impair the moral freedom of the settlor, often only has in such cases presumptions resulting from facts left for his appraisal on which to base his decision. However, such presumptions may become evidence which will be all the more convincing to the extent that the perpetrator of the manoeuvres took greater pains to conceal them. (My emphasis.)

The trial judge concluded the first part of his judgment by saying:

[TRANSLATION] The admissions, contradictions and actions of defendant disclosed by the examination on discovery and the hearing on the merits support the conclusion that the testator was the victim of undue influence, with the result that the will in question has no legal effect.

On this crucial point, he does not deal again with the shifting of the burden of proof; nor does he return to the subject in his grounds. It may thus be assumed that he did not regard this point as decisive.

[Page 204]

VII—English law and the civil law

The Court was referred by both sides to a large number of English decisions or decisions in cases from other provinces, for the reason that the unfet­tered freedom to devise or bequeath one's property by will comes from English law, and that there are analogies between the concept of undue influence in English law and undue influence (captation) in the civil law. The case at bar does not concern the unfettered freedom to devise any more than it concerns a will in the form derived from the laws of England. Moreover, undue influence applies to gifts inter vivos as it does to wills, and gifts are purely a matter for the civil law. In such circum­stances, I not only hesitate to use decisions from other provinces in a civil law matter, I am not in any way bound by a decision of this Court which was cited by counsel for the respondent: Adams v. McBeath[5]. This was a majority decision dismissing an appeal from a decision of the Court of Appeal of British Columbia. The headnote reads as follows, at p. 13:

In order to set aside a will on the ground that its execution was obtained by undue influence on the mind of the testator it is not sufficient to show that the circumstances attending the execution are consistent with the hypothesis that it was so obtained. It must be shown that they are inconsistent with a contrary hypothesis.

In my opinion this old case comes very close to introducing into private law the rule in Hodge's case on reasonable doubt in the criminal law. This theory has no bearing on the provisions of the civil law as to evidence.

VIII—Conclusions

I would allow the appeal, set aside the judgment of the Court of Appeal and restore the judgment of the Superior Court, with costs throughout.

Appeal allowed with costs.

Solicitors for the appellant: Tremblay, Pinsonnault, Pothier, Morisset & Associés, Quebec.

Solicitors for the respondent: Lazarovitz, Ber­natchez, Roitier & Néron, Quebec.