Guérin v. Guérin

Le dossier r6vble que le jeune Champagne 6tait h jouer sur le bord de la route, dans la paroisse de St-Magloire, ohi a 4t6 vu par plusieurs personnes vis-h-vis la r6sidence des J.Labrie, et quelques instants plus tard, il a 6t6 retrouv6 sur le pave, gri~vement bless6. Les t6moins Labrie, Arthur Racine 6tablissent qu'ils ont entendu un bruit, qu'ils ont vu 1'enfant 6tendu sur la rue, les jambes sur l'accotement-on vit 6galement une auto noire qui montait dans la direction de la maison Champagne-il n'y en avait pas d'autre sur la route, et il est clair que c'est Th6rbse Champagne qui conduisait cette voiture, modble 1948.

Le juge au procks est arriv6 h la conclusion, d'apris 1'ensemble de toutes les circonstances, que c'est Th6rise Champagne qui a frapp6 cet enfant, et la Cour du banc de la reine a partag6 cette opinion-on s'est base tel qu'on devait le faire, sur la balance des probabilit6s, et je ne vois pas, quand il y a unanimit6 sur les faits, que cette Cour puisse intervenir. Comme la Cour du banc de la reine, je suis d'opinion qu'il n'y a pas lieu de r6duire le montant des dommages accord6s.

L'appel doit 6tre rejet6 avec d6pens.

ABBOTT J.:-In their action, respondents, who are a brother and certain nephews and nieces of the testator, Joseph Samuel Guirin, contest the validity of a will made on October 2, 1954, which left everything to the appellant Euginie Gu6rin Foisy, a sister of the testator, and which named her son the appellant Edouard Foisy as sole executor. The will is attacked upon grounds of testamentary incapacity and undue influence.

The learned trial judge found in favour of the will but his finding was unanimously reversed on appeal'.

1 [19611 Que. Q.B. 84.

S.C.R.

The impugned will, in the form derived from the laws of England, was made some four days prior to the testator's death in hospital following an operation, and is a short one. - It reads as follows:

If valid, the will revoked another will made by the deceased in authentic form on January 26, 1954, before I. R. Lavoie and colleague, notaries. Under the terms of this notarial will the testator after providing for certain particular legacies to the respondent Maurice Gu6rin and the respondents Paul B6chard and Marguerite B6chard, children of a deceased sister, named as his residuary legatees the appellant Madame Foisy and the children of two other sisters who had predeceased the testator.

The facts are fully set forth in the judgments of the learned trial judge and in the Court below. For the purpose of this appeal they'can be shortly stated.

In 1954 the deceased Joseph Samuel Gu6rin was 87 years of age. He was a bachelor and for many years prior to August 1954 had been living in furnished lodgings. Early in August 1954, following a visit with relatives near Mont Laurier, he went to reside in the home of his sister, one of the appellants.

He had suffered for some time from diabetes, for which he was treated with insulin, was hard of hearing, and almost blind. Near the end of September 1954 he developed a serious infection in the form of an abscess on one of his buttocks.

His physician Dr. Louis Lamarche was called in to see him on September 27, 1954, and thereafter saw him every day until his death, with the exception of Sunday, October 3. Dr. Lamarche called in consultation a surgeon, Dr. Wilfrid Perrault, who visited the deceased for the first time on the afternoon of October 2, 1954. He recommended that an operation be carried out in hospital as soon as possible. The deceased was admitted to the Maisonneuve Hospital that same evening. Dr. Perrault visited his patient in hospital the next day Sunday, October 3, operated on him the following day Monday October 4, and thereafter saw him each day until his death early in the morning of October 6. The circumstances surrounding the preparation and execution of the impugned will must be ascertained largely from the evidence given by the appellant Edouard Foisy. According to Foisy, the deceased suddenly, between 5 and 6 p.m. on Saturday, October 2, expressed to him the desire to make a new will. Foisy then consulted by telephone a friend or acquaintance of his, one Etienne Duval, a notary, but the latter apparently refused to come to the Foisy home, pleading other engagements. Foisy testified however that Duval offered to advise him and did advise him over the telephone as to how a will in the English form should be drafted. No attempt was made to get in touch with the testator's own notary, and no reason was given for the failure to do so.

Foisy also telephoned to a friend, one Jean Loranger, who came to the Foisy house accompanied by another friend, one Jean-Paul Paquette, and these two acted as witnesses to the impugned document. This document was written out by Loranger in Foisy's room from a draft prepared by the latter, and after this had been done the three then entered the deceased's room. Apparently the appellant Madame Foisy and one of her daughters were also present at this time. After the document had been read to the deceased by Foisy, he signed it in the presence of the witnesses Loranger and Paquette. All this appears to have taken place between six and eight o'clock on the evening of October 2nd. Evidence as to the physical condition and mental attitude of the deceased was given by Dr. Lamarche and Dr. Perrault. It is clear from their testimony that the deceased was a very sick man, suffering from chronic diabetes and uremia, complicated by a severe diabetic abscess. As to his mental attitude, Dr. Lamarche testified that when he saw him on the morning of October 2 he found him "un peu h6bit6". Dr. Perrault when he saw the deceased that afternoon stated that he was "plus ou moins conscient". The records of the Maisonneuve Hospital of the admission and treatment of the deceased were received in evidence as an exhibit at the trial by consent of both parties. Dr. Gervais, the interne who examined the patient on admission GuERIN had recorded-"Le patient est sourd et r6pond tris mal aux questions".

Abbott J.

Dr. Julien Pesant, a specialist in diabetes-who had not seen the patient-was examined as an expert, and gave as his opinion based upon the medical record of the deceased, that by reason of his age and physical condition "il pouvait etre certainement un petit peu omnibul6 ....

un peu dans les nuages".

Testamentary capacity was considered by this Court in Lgger v. Poirier'. In the judgment of the majority delivered by Rand J., the leading cases were examined and that learned judge said at p. 161:

But there is no doubt whatever that we may have testamentary incapacity accompanied by a deceptive ability to answer questions of ordinary and usual matters: that is, the mind may be incapable of carrying apprehension beyond a limited range of familiar and suggested topics. A "disposing mind and memory" is one able to comprehend, of its own initiative and volition, the essential elements of will-making, property, objects, just claims to consideration, revocation of existing dispositions, and the like; this has been recognized in many cases: ....

Merely to be able to make rational response is not enough, nor to repeat a tutored formula of simple terms. There must be a power to hold the essential field of the mind in some degree of appreciation as a whole. That statement has been approved subsequently by this Court in Mathieu et al. v. St. Michel 2 ; McEwen v. Jenkins 5 ; and Hayward v. Thompson.

The medical evidence in the case at bar, taken by itself was not perhaps sufficient to establish a prima facie case of testamentary incapacity. That evidence, however, must be considered in conjunction with the surrounding circumstances. These included such matters as (1) the unseemly haste in the preparation and execution of the will; (2) the fact that no attempt was made to obtain independent advice from the deceased's own notary, who had acted for him for many years, and before whom he had recently executed a will in authentic form; and (3) the absence of any satisfactory explanation as to why the deceased should suddenly have decided to bequeath all his property to one sister- 1[19441 S.C.R. 152, 3 DL.R. 1.

2 [19561 S.C.R. 477, 3 DL.R. (2d) 428.

[19581 S.C.R. 719 at 725.

4 (1960), 25 D.L.R. (2d) 545.