BY MURRAY SKLAR
							B.Sc., LL.L, LL.B., C.A.
							Montreal, Quebec,
							Affiliated with Sternthal
							Katznelson Montigny
						  

1. Introduction:
   A recent decision of the Quebec Court of Appeal, (cited in Jurisprudence Express #99-29), upholding an earlier decision of the Quebec Superior Court, highlights the importance of proper will-drafting.

   The Quebec Superior Court, in the case of YESHIVA GEDOLA MERKAZ HATORAH of Montreal (the "Petitioner") c. Myron - Abramovitch (the "Respondent"), 1997 R.J.Q. 1748 refused to probate a will on the ground that what purported to be a will was not a legal will.

2. Facts: The petitioner submitted a "document" for probate which it believed was a will signed in 1982 before two witnesses. The document read as follows:

   Agreement is hereby reached between Mr. Sam Gens and Rabbi Moshe M. Glustein, Representative of the Yeshiva Gedola-Merkaz Hatorah of Montreal, that after the demise of Mr. Gens the Yeshiva will say Kaddish and observe perpetual Yahrzeit and all other necessary memorial rites for the deceased. A plaque will also be installed on our Memorial Board for Mr. Sam Gens-Yisroel Avrohom ben Moshe Halevi.

   For these services Mr. Gens hereby bequeaths the amount of 15% of his estate to the Yeshiva Gedola-Merkaz Hatorah of Montreal.

   In essence, the testator, Mr. Gens entered into an agreement with the Petitioner whereby the Petitioner agreed to perform and observe memorial rites and install a memorial plaque for the testator in exchange for receiving 15% of the testator's estate.

   A few preliminary issues, dealing with the capacity of the Petitioner to apply for a probate and the validity of a will signed before witnesses, one of whom was a representative of the Petitioner, (i.e. Rabbi Glustein) were decided in favour of the Petitioner. The more substantive issue, however, was whether this agreement constituted a will. Article 704 of the Civil Code of Quebec ("CCQ") states:

   Art.704. A will is a unilateral and revocable juridical act drawn up in one of the forms provided for by law, by which the testator disposes by liberality of all or part of his property, to take effect only after his death.

   In no case may a will be made jointly by two or more persons.

   Essentially then a will must be unilateral and revocable. An agreement by definition is not unilateral but rather consensual (i.e. an agreement involves at least two people). Moreover, this agreement was not revocable, either by the testator or by the Petitioner. Even though the testator "bequeathed" 15% of his estate, such a bequest was in consideration for post-mortem services to be performed by the Petitioner. Thus this document was not a true will.

   As a result, an earlier 1979 will of the testator, wherein he bequeathed 100% of his estate, to various relatives was upheld as being the sole valid will. Consequently the Petitioner's claim to 15% of the estate was totally denied.

   The Quebec Court of Appeal essentially reiterated what the Quebec Superior Court Judge said: A will is not an agreement - it must be unilateral and revocable.

   What is not mentioned in any of these judgments is that the Petitioner could have accomplished its goal of receiving an inheritance and performing post-mortem religious services for the deceased testator by making the bequest to the Petitioner, not as an agreement, but as a conditional bequest, or as a bequest subject to a charge, to carry out certain post-mortem duties or functions. Provided a condition attached to a bequest is possible to perform and it is not against public order, then it will be enforceable; Article 757 CCQ.

   Alternatively, a testamentary private trust could have been established in the testator's will for his perpetual memory: Article 1273 CCQ.

   The trust document could have provided both for the perpetual memory of the testator and for the benefit of the Petitioner: the income of this trust could have gone annually to the Petitioner (presumably a registered charity) subject to a charge to perpetuate the memory of the testator.

   It is unfortunate that what obviously was a bona fide agreement between the testator and the Petitioner could not be respected because of a misunderstanding of what a will is. Hopefully both professionals and the public will learn from this decision.

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   E-Mail to:_M.Sklar@NetAxis.qc.ca

   Copyright ©:99.08.04

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