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Legal Information/ Legal Briefs

Legal Briefs

Until 2010, these legal briefs provide examples of judgments pertaining to everyday situations. Beginning in 2012, they deal with various topics of general interest, such as rental issues, family law, human rights, civil liability, insurance, dealings between spouses and social aid. They are intended to inform and to prevent undesirable situations.


 


Legal Briefs 2010

  Month
Number
Legal brief
November
 18
Can I serve my sentence in the community? This hypelink opens a PDF file in a new window.

THE FACTS

After a night of partying during which the accused consumed some alcohol, the accused, an 18-year-old, decided to drive his friends home. He only had seven weeks of experience as a licensed driver and knew that his vehicle was not in good condition. According to the evidence, he dr
more
November
 17
Should you prepare a mandate in the event of incapacity? This hypelink opens a PDF file in a new window.
With our aging population and increasing life span, there is, unfortunately, a very real possibility that we will suffer an illness or accident. Should you prepare a mandate in the event of incapacity? more
October
 16
Do I have the right to see my grandchildren?This hypelink opens a PDF file in a new window.
I would like to see my grandchildren, but the mother of the children is against it. What are my recourses as a grandparent? more
October
 15
Am I entitled to a disability pensionThis hypelink opens a PDF file in a new window.
I have had serious health problems for years and I’m not 60 years old yet. I am unable to work. Am I entitled to a disability pension? more
September
 14
I want to have my father's will annulledThis hypelink opens a PDF file in a new window.
Your father informs you that you are one of the legatees named in his will as an heir. Shortly before his death, he changes his will and bequeaths all his property to someone else. Can you have this will, which you believe is unfair, annulled?

THE FACTS

In April 2006, the deceased had a notary prepare a will in which he bequeathed all his property in equal shares to his daughter and granddaughter. In October 2006, he signed a new will, still before a notary, in which he changed the beneficiaries of his succession, disinheriting his daughter and granddaughter in favour of his nephew and the nephew’s spouse. He died in November 2006.

THE ISSUE

The plaintiff, the daughter of the deceased, wanted to obtain the annulment of the will signed by her father in October 2006 which appointed persons other than her and her daughter as universal legatees.

THE DECISION

The Court could not find that the testator had not been of a sound mind and it dismissed the plaintiff’s recourse.

THE GROUNDS

According to the Civil Code of Québec: “Every person having the required capacity may, by will, provide otherwise than as by law for the devolution upon his death of the whole or part of his property.” (Article 703). Thus, every individual can choose to bequeath his property to whomever he wants and he has no obligation to choose the members of his family. When the validity of a will is contested, the court must be able to assess the testator’s capacity to make a will at the time the will was signed.

According to the notes made by the family doctor who had met the deceased in October 2006, there had been nothing abnormal in the deceased’s conduct. At the end of September 2006, an occupational therapist had met with the deceased and had prepared a written report in which she had noted a few deficiencies, but nothing major. At the beginning of October 2006, an assessor from the SAAQ testified that she had had the deceased undergo a road driving test and had filed a report in which nothing particular had been noted. The notary who prepared the last will testified to the effect that that he had known the deceased since at least 1995. When the deceased signed the new will on October 3, 2006, the notary had had no doubts regarding his lucidity.

The burden of proof therefore lies on the person contesting the validity of a will. In order to invalidate a will, there must be serious evidence of the existence of an unusual state of mental alienation or weakness at the time the will was signed.

To make this assessment, the judge may consider certain criteria in addition to the testimony of close relatives and various professionals. One criterion is to ensure that there are no suspicious circumstances surrounding the signing of the will. In the case at hand, there did not seem to have been any such circumstances. Another criterion is haste in the preparation and signing of the will. Here, too, this had not been the case. On the contrary, the deceased had thought about it all summer and had asked the notary to finalize the whole matter. A third criterion is an unexplained change in legatees. In the case at hand, the strained relationship between the plaintiff and her father could easily explain the change. A fourth criterion has to do with age, but it cannot be said that the deceased had been exceedingly old, notwithstanding the fact that he had been 78, given that he had been autonomous and had had no serious illnesses. A fifth criterion is the unreasonable nature of the testamentary provisions. In light of the particular circumstances of the case, the provisions were not unreasonable.
References
Lavallée v. Lavallée, 2009 QCCS 5193, Superior Court (C.S.) 200-17-008061-079, November 10, 2009, Judge: Jacques Babin

Civil Code of Québec, (S.Q. 1991, c. 64), article 703


Legal brief *
September  2010
Number  14
Text prepared by   Le jugement dont il est question dans cette chronique a été rendu en fonction des éléments de preuves soumis au tribunal. Chaque situation est particulière. Dans le doute, nous vous suggérons de consulter un avocat de l’aide juridique. / The jugement discussed in this article was rendered based on the evidence submitted to the court. Each situation is unique. If in doubt, we suggest you consult a legal aid lawyer.
Update by   Commission des services juridiques
* The information set out in this document is not a legal interpretation.
The masculine is used to designate persons solely in order to simplify the text.
September
 13
I have to resiliate my lease due to my loss of autonony This hypelink opens a PDF file in a new window.
I have lost my autonomy and I have a medical document confirming that I have to move into premises adapted to my needs. What should I do? more
June
 12
My right to privacy has been violatedThis hypelink opens a PDF file in a new window.

THE FACTS

While helping lift an obese patient from her chair, a worker felt a fierce burning sensation and shooting pain in her back, on the left side, and experienced difficulty lifting her left arm. In May 2005 she was diagnosed with a cervicodorsal sprain which was consolidated in Nove more

June
 11
My property has been seizedThis hypelink opens a PDF file in a new window.
As a result of unpaid debts, can a creditor seize all the moveable property in a residence? more
May
 10
A court has ordered that I be placed in a detoxification centre This hypelink opens a PDF file in a new window.
In principle, every person is free to accept or refuse to submit to health care. Exceptionally, a hospital centre may go to court to compel an unfit person to receive treatment despite the person’s categorical refusal, that is, against the person’s will. When dealing with treatment against a person’ more
May
 09
A police officer has asked my child for his version of the facts This hypelink opens a PDF file in a new window.
A youngster has been arrested and the police officer has asked him for his version of the facts. What are his rights? more
April
 08
I am not dangerous: When will my confinement in an institution end? This hypelink opens a PDF file in a new window.
An individual suffering from mental illness may be placed in confinement in a health care institution if he presents a danger to himself or to others due to his mental state. However, if the individual in question opposes the confinement, a court authorization is required. In order to obtain such an more
April
 07
My youngster is guilty of roberyThis hypelink opens a PDF file in a new window.
An offender is convicted of robbery. What is the best judicial decision for this youngster? more
March
 06
For how long can I be obliged to remain in a residential facility? This hypelink opens a PDF file in a new window.
What is the maximum duration of a residential placement order forcing a person to live in a residential facility? more
March
 05
I refuse to let my child have a blood transfusion This hypelink opens a PDF file in a new window.
Can parents refuse to let a doctor give a blood transfusion to their minor child on religious grounds? more
February
 04
Is my confinement in an institution necessary? Am I dangerous? This hypelink opens a PDF file in a new window.
In matters of confinement in an institution, judges are called upon to decide on a person’s dangerousness to himself or to others due to his mental state. Dangerousness is the only criterion on which a court must base itself in order to confine an individual in a hospital against his will. How do ju more
Februay
 03
I lost my job due to family obligations This hypelink opens a PDF file in a new window.
You leave your job to go to Guinea to stay with your father who is seriously ill. In the meantime, you learn that he has died and you go to his funeral in Guinea, where you take care of your mother who is also seriously ill. Upon your return, you are refused employment insurance benefits on the grou more
January
 02
Can wearing tinted eye glasses at night reduce vision quality? This hypelink opens a PDF file in a new window.

THE FACTS

On May 24, 2007, at approximately 9:42 p.m., an individual was driving his automobile on an unlit road while wearing black-tinted eye glasses. A police officer followed him for a while and stopped him. The individual claimed that his glasses made him look “cool”. The police offi more

January
 01
I live in a dwelling in low-rental housing and am frequently away from home This hypelink opens a PDF file in a new window.
You live in a dwelling in low-rental housing and are often away from home in order to visit your family and friends. Can the lessor ask for the resiliation of the lease due to the unoccupancy of the dwelling? more
 
© Commission des services juridiques Création: Diane Laurin - 2017