What You Need to Know – Deathbed Wills and Gifts

Mr. Albert Douek led a very full life. Born in Egypt in 1921, he married Mrs. Bertha Goliger Douek (“Ms. Goliger”) in 1949. In 1949, he immigrated to Canada with his wife and daughters, Ms. Nicole Magder Douek (“Ms. Magder”) and Ms. Maureen Rosen Douek (“Ms. Rosen”). In the years that followed, he established a successful business and became very wealthy. In the 1980’s, he met and became romantically involved with Ms. Roslyn Gothelf Phillips (“Ms. Phillips”). He eventually moved into a newly built luxury home in Cote-Saint-Luc with Ms. Phillips. He and Ms. Goliger never divorced. Mr. Douek supported Ms. Phillips with a monthly allowance of $3,000.00 and gave her substantial financial gifts.[i]

 In 1974, he had made a will under which he left everything to Ms. Goliger. In 2000, he made a codicil to that will, leaving the property in Cote-Saint-Luc to Ms. Phillips with the rest of his property still going to Ms. Goliger. In the winter of 2012[ii] [iii], Mr. Douek was diagnosed with acute myeloid leukemia. At that time, he drafted a handwritten codicil, again modifying his 2000 will, replacing Ms. Goliger by his daughters as the heirs to his Estate, but leaving in the stipulation that the house in Cote-Saint-Luc would still be left to Ms. Phillips.[iv]

 In April 2012, he signed a notarial deed, transferring the ownership of the Cote-Saint-Luc property to Ms. Phillips. He also signed a new notarial will under which he gifted:

 ·      Ms. Phillips $700,000.00;

·      Ms. Goliger two properties - one in the Town of Mount Royal and the other in Florida, and

·      the remainder of his Estate to Ms. Goliger and his daughters in equal shares.[v]

 On August 28, 2012, he was admitted to the Jewish General Hospital. During the morning of August 30, 2012, he fell, injured his head, and was found lying in a pool of blood in his hospital room. Because of the fall, he suffered respiratory complications. He was transferred to the ICU where he was intubated, medicated, and sedated for 5 days.[vi]

 On August 31, 2012. Ms. Phillips deposited into her bank account a cheque for $275,000.00 dated August 26, 2012, and purportedly signed by Mr. Douek.

 According to testimony given by Ms. Angela Santullo at trial, she overheard a conversation in early September, 2012, where Ms. Rosen told someone “… that the family had to convince Mr. Douek to change his will, and that he should be told that Ms. [Roslyn] had been romantically involved with someone else.”[vii]

 On September 4, 2012, the August 26th $275,000.00 cheque arrived at Mr. Douek’s bank. Ms. Carol Edwards, a bank employee, questioned whether Mr. Douek had, in fact, signed it. She was not able to reach Mr. Douek so, on September 5th, credited back the $275,000.00 to Mr. Douek’s account. The following day, Ms. Edwards was able to speak to Mr. Douek who said that “… he did not recall making that cheque…” He also instructed the bank to stop passing any cheques through his account until he advised them otherwise.[viii]

 On Sunday, September 12th, the “family” informed Notary Dan Armand Derhy of the provisions of a new will which Mr. Douek wished to make. The same day, Mr. Douek signed a quick claim deed, furnished by Ms. Rosen, transferring his Florida property to Ms. Goliger. He also signed a 3-page notarial will in front of Notary Derhy. The new will left one half of his property to Ms. Goliger and the other half to his daughters. Ms. Phillips was not mentioned at all.

 Mr. Douek was intubated and was only able to communicate with Notary Derhy in writing. In addition to writing out his instructions regarding the will, he wrote “Ce que j’ai donné elle Roslyn PHILLIPS peut le garder Roslyn PHILLIPS je cone tout ce qui passez avec le pro tennis”.[ix]

 By mid-September, 2012, Mr. Douek had improved to the point that he was able to be involved in his company’s business. Ms. Phillips visited him daily.  Hospital records show that he told hospital staff how fond he was of Ms. Phillips and that, when he was discharged from the hospital, he wanted to live with Ms. Phillips.[x] During this period, he also spoke with Mr. Sydney Sweibel, a lawyer he had known for approximately 10 years.[xi]

 On Sunday, September 29th, Mr. Douek signed a series of documents drafted by Notary Derhy on instructions from Lawyer Sweibel and Mr. Douek’s daughters. Three of the documents had the effect of transferring, to his daughters, $2,000,000.00 of loans which he had made to his company. Two other documents consisted of a mandate in the event of incapacity[xii] as well as a power of attorney. Under these two documents, his daughters were named Mr. Douek’s representatives. The final two documents were a 3-page will which essentially contained the same provisions as the September 2nd will and a 25-page will, called the “Testament Principal”, which contained detailed provisions regarding the management of Mr. Douek’s Estate. Ms. Phillips was not mentioned in any of these documents.[xiii]

 On October 21, Mr. Douek passed away.[xiv]

 Ms. Phillips challenged all of the wills signed in September, 2012 and sued Ms. Goliger, Mr. Douek’s daughters and his Estate (collectively the “Defendants”), on the grounds that Mr. Douek was under the undue influence of his daughters when he signed them. She asked that the April 20, 2012 will, under which she inherited $700,00.00, be recognized as Mr. Douek’s true last will. She also sued for the $275,000.00 represented by the August 26th cheque.[xv]

 The Defendants not only denied that they exercised undue influence on their father but filed a cross-demand alleging that the April 20, 2012 will was invalid because it had been signed by Mr. Douek under Ms. Phillips’ undue influence and that she forged his signature on the August 26th cheque. They added that the transfer of the Cote-Saint-Luc property to Ms. Phillips in April 2012, by Mr. Douek, should also be set aside because it was made as a result of Ms. Phillips’s coercion and on the grounds of ingratitude on her part.[xvi] Finally, the Defendants argued that, in any event, the gift of $275,000.00 by cheque was unlawful because it was made by Mr. Douek in contemplation of his death.[xvii]  

 For reasons of commodity, the Court first considered the Defendants’ claims. It concluded that Ms. Phillips had not exercised undue influence on Mr. Douek when he made the April 2012 will,[xviii] that she did not coerce him into transferring the Cote-Saint-Luc property to her,[xix] and that she had not misappropriated or attempted to misappropriate monies from Mr. Douek.[xx]

 The Court then considered Ms. Phillips’s claim that the September 2012 wills were signed by Mr. Douek under undue influence. In order to succeed she had to prove, on the balance of probabilities,  that it was more likely than not,[xxi] that Mr. Douek was subject to “…improper schemes, disgraceful devices, lie, slanders, deceit and trickery, or deliberate misrepresentations…”[xxii] as well as that “…such machinations caused [Mr. Douek] to make the impugned will[s].”[xxiii]

 As is typical in such cases, Ms. Phillips had little direct proof of the alleged undue influence. She relied on circumstantial evidence. As the Supreme Court of Canada wrote: “[P]roof of undue influence or suggestion sufficient to vicarate consent of a testator is not an easy undertaking, it is rare that the perpetrator of the maneuvers 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 greater certainty and discretion”[xxiv] Essentially undue influence is proved by presumptions of fact which under Article 2849 C.C.Q. must be “serious, precise, and concordant.”[xxv] Even “…proof of troubling facts and circumstances surrounding the making of the impugned will, even when combined with incoherent and misleading testimony by the defendants, will not necessarily suffice to support a finding of undue influence.”[xxvi]

 After a lengthy analysis of the evidence,[xxvii] the Court summarized the evidence and concluded that Ms. Phillips had proved that Ms. Rosen had deceived her father:

 “   In sum, the record shows the following:

 ? on September 2, 2012, Mr. Douek had formed the belief that Ms. [Roslyn] was having an affair with a tennis pro;

 ? Ms. [Phillips’] denial of unfaithfulness was not challenged by the defendants and nothing in the record can support a finding that Mr. Douek’s belief was actually true;

 ? in early September 2012, while her father was still in the ICU, Ms. [Maureen] expressed the intention to tell her father that Ms. [Roslyn] was having an affair in order to convince him to change his will;

 ? the manner in which Mr. Douek’s daughters responded to Ms. [Phillips’] claims, along with Mr. Douek’s belief that they were capable of taking unwarranted actions against Ms. [Roslyn] show that it is very much plausible that they deceived him into falsely believing that she was having an affair with a tennis pro;

 ? Mr. Douek’s daughters remained close to their father and were significantly involved in his affairs throughout the hospitalization that preceded his death;

 ? a rumor concerning Ms. [Phillips’] involvement with a tennis player was circulating among the Douek family at the time of Mr. Douek’s hospitalization and, because it is unlikely that this rumor failed to reach Mr. Douek’s daughters, their denial of having had any knowledge – at that time – of an affair involving Ms. [Roslyn] and a tennis player is not credible;

 ? in several respects, the transcript of Ms. [Maureen’s] examination out-of-court conveys the impression that she had little interest in telling the truth and had something to hide.

 These facts support an inference that Mr. Douek developed a belief that Ms. Phillips was having an affair with a tennis pro as a result of deceitful actions primarily carried out by Ms. Rosen. Moreover, because these facts cannot support an equally compelling alternative explanation — let alone a more compelling one — regarding the source of Mr. Douek’s belief, I find that it is more likely than not that Mr. Douek developed that belief as a result of his daughter’s deceitful actions. Ms. Phillips has thus met her burden on that aspect of the case.”[xxviii]

 The Court then turned its attention to whether Ms. Rosen’s deceitful acts caused Mr. Douek to make the September 2nd wills. The Defendants’ contention was that Ms. Roslyn failed to prove that Mr. Douek’s belief that she was having an affair with the tennis pro was the probable reason why no mention of her was made in the September 2012 wills. The Court rejected this argument. It gave great weight to a note, handed to Notary Derhy by Mr. Douek, at the same time he signed the September 12th will. In the Court’s words it “…tends to support Ms. [Phillips’] position, as logic and common sense suggest quite strongly that Mr. Douek mentioned the tennis pro to [Notary] Derhy because he wished to explain his decision to leave Ms. [Roslyn] out of his will. If he was not bothered by the thought of Ms. [Roslyn] being unfaithful, and if he had other reasons to exclude her from his last will – one possibility being a tax liability issue on which [Lawyer] Sweibel testified and which would have had a significant impact on the size of the succession -, why would he have given the note to [Notary] Derhy.”[xxix] Indeed, Mr. Derhy testified that he understood that Mr. Douek intentionally wanted to leave Ms. Phillips out  of the will because of her “purported unfaithfulness”.[xxx]

 The Defendants also raised a number of other “circumstantial facts” to try to show that Mr. Douek had, in fact, forgiven Ms. Phillips for her alleged infidelity and that she was disinherited for other reasons. Such facts included:

 ·      Mr. Douek’s hospital records, where it was written that he told medical staff of his fondness for Ms. Phillips and his wish to return home with her;

 ·      Mr. Douek never mentioning the alleged unfaithfulness to Lawyer Sweibel or Ms. Edwards; and

 ·      Mr. Douek maintained a relationship with his wife, Ms. Goliger, and even left her substantial bequests in his 2000 and April 2012 wills,[xxxi] although she had been unfaithful to him during their marriage.

 None of these or other circumstances persuaded the Court that Ms. Phillips had failed to meet her burden of proof.[xxxii] The Court concluded that Ms. Phillips had “…established on the balance of probabilities that Mr. Douek made the September 2, 2012 will as a result of deceitful actions carried out by Ms. [Maureen]. This conclusion is also applicable to the will signed by Mr. Douek on September 29, 2012…Nothing in the record suggests that the provisions of the September 29, 2012 will concerning the distribution of Mr. Douek’s property were based on different considerations than those underlying the corresponding provisions of the September 2, 2012 will.”[xxxiii]

 The Court, therefore, annulled the September 2012 wills “… on the grounds of undue influence.”[xxxiv]

 It then turned to the issue of the $275,000.00 gift to Ms. Phillips by Mr. Douek’s August 26, 2012 cheque. The Court summarily rejected the argument that Ms. Phillips forged Mr. Douek’s signature on the check for the same reasons that it rejected the argument that she had misappropriated or attempted to misappropriate hundreds of thousands of dollars of Mr. Douek’s money.[xxxv]

 However, the Court held that the gift was invalid under Quebec law because it was made in contemplation of death.[xxxvi] Article 1919 C.C.Q. specifies that gifts in contemplation of death can only be made in a marriage or civil union contract[xxxvii] or in a will. Article 1820 Q.C.C. goes on to specify that “[a] gift made during the deemed mortal illness of the donor is null as having been made [in contemplation of death], whether or not death follows unless circumstances render it valid.” The Article goes on to specify that if the donor recovers and leaves the gift in the donee’s possession for three years, the gift is then deemed valid.

 A gift is considered to be made in contemplation of death if the donor is so seriously ill that death is imminent and if, at the time of the making of the gift, the donor was aware that death was imminent.[xxxviii]

 The Court found that there was “little doubt” that Mr. Douek was gravely ill. In the winter of 2012, when diagnosed with leukemia, he was given 6 months to live.[xxxix] By then he “… was in all likelihood well aware of the seriousness of his condition.” He was very intelligent and “… must have clearly understood the gravity of a diagnosis of acute myeloid leukemia for a man of his age.” For her part, Ms. Phillips testified that, when he gave her the $275,000.00, Mr. Douek was “… aware of his illness and acted as he had with a view to protecting her.” The Court found that “[t]hose facts, combined with the significance of the amount involved, strongly suggests that not only that Mr. Douek was fully aware that he was gravely ill, but also that he made the gift to Ms. [Roslyn] because he knew he did not have long to live”. The Court, consequently, dismissed Ms. Phillips’ claim for the $275,000.00.[xl]

 The Court annulled the September 2012 wills and declared that the April 15, 2012 will was Mr. Douek’s true last will. It, consequently, ordered Mr. Douek’s Estate to pay Ms. Phillips $700,000.00 with interest.[xli]

 WHAT YOU NEED TO KNOW

 ·      The issue of the forms of the wills were not discussed in the Judgment. However, wills which are not drafted in one of the forms required by law are null and unenforceable. Quebec law recognizes three forms of will. The first, holograph wills, are written entirely in the testator’s own hand and signed by the testator. The second are wills before at least two witnesses, who are adults, which can be typed up or written by hand by someone other than the testator. It is recommended that the witnesses not be beneficiaries or executors of the will, as they may lose any bequest made to them,[xlii] or certain jurisdictions, may result in the nullity of the will. Such wills, signed before witnesses, must be initialed on each page, and signed at the end by the testator and each witness. Each witness must also attest that he or she saw the testator and the other witness sign the will. The final form is a notarial will which is signed before a notary and one other witness. Notarial wills are unique to civil law jurisdictions such as Quebec. Quebec law does give the courts some flexibility to accept as wills documents which are not in the exact form required by law[xliii];

 ·      Although it is preferable for wills to be drafted by lawyers or notaries, in a pinch a holograph will do. For example, in 1948, Mr. Cecil George Harris’ tractor overturned trapping him under it. Not knowing if help would reach him in time, he carved the following into the tractor’s fender “in case I die in this mess I leave all to my wife. Cecil Go. Harris.” Mr. Harris’ widow filed the fender into Court to have it probated as Mr. Harris’ will and it was. The fender is now displayed in the library of the Faculty of Law of the University of Saskatchewan;[xliv]

 ·      Nothing in law prohibits one from discussing with another person the provisions of such individual’s future will or even making suggestions or requests for bequests. However, care must be taken not to exercise undue influence by, for example, lying or making misrepresentations about a potential beneficiary under such will. Similarly, care must be taken not to put undue pressure on an individual, particularly an elderly individual, to leave a bequest for oneself or one’s other family members such as spouse, children, or grandchildren;

 ·      It is important to keep in mind that gifts made in contemplation of death, outside of a will or a marriage or civil union contract, are absolutely null. The recipient of such gifts may be required to return it to the donor, if he or she does not die, or to his or her Estate.

 It goes without saying that the preceding comments are general in nature and are not intended to offer any legal advice regarding any specific situation.

  [i] Paragraphs 5 to 7 in the Judgment of Phillips vs. Douek (2020 QCCS 1048). All reference to paragraph numbers refer to paragraph numbers of the Judgment.

[ii] The reference in the Judgment refers to the winter of 2012 refers, we believe to January to March 2012.

[iii] Para. 8.

[iv] Paras. 8 & 9.

[v] Para. 10.

[vi] Para. 12.

[vii] Para. 14.

[viii] Para. 17.

[ix] Paras. 15 & 16. The text of note is reproduced in the Judgment exactly as written. Translated to English it appears to mean “All that I have given her Roslyn Phillips she can keep – Roslyn Phillips I know all that happened with the tennis pro”.

[x] Para. 19.

[xi] Para. 18.

[xii] More commonly referred to as a “Protection Mandate or a Living Will”.

[xiii] Para. 20.

[xiv] Para. 21.

[xv] Para. 2.

[xvi] Article 1836 of the Civil Code of Quebec (C.C.Q.) specifies that a gift “…may be revoked on account of ingratitude.” It goes on to describe ingratitude as occurring when “…the donee has behaved in a serious reprehensible manner towards the donor, having regard to the nature of the gift, the faculties of the parties and the circumstances”.

[xvii] Para. 4.

[xviii] Paras. 24 & 25.

[xix] Para. 29.

[xx] Paras 34-38.

[xxi] Para. 45

[xxii] The Court’s citation from Brusenbauch vs. Young 2019 QCCA 914, Para. 7.

[xxiii] Para. 41.

[xxiv] Stoneham and Tewksbury vs. Ouellet 2017 2 S.C.R. 172, at page 203 cited by the Court at paragraph 49.

[xxv] Para. 44.

[xxvi] Para. 44.

[xxvii] Paras. 46 – 56.

[xxviii] Para. 57.

[xxix] Para. 59.

[xxx] Para. 60.

[xxxi] Paras. 61, 62 & 64.

[xxxii] Paras. 63 & 65-67.

[xxxiii] Para. 68.

[xxxiv] Para. 69.

[xxxv] Para. 72.

[xxxvi] In Latin “mortis causaI”.

[xxxvii] More commonly known as prenuptial agreements.

[xxxviii] Para. 73.

[xxxix] Para. 74.

[xl] Para. 76.

[xli] Paras. 84-86.

[xlii] Art. 760 C.C.Q.

[xliii] Art. 1714 C.C.Q.

[xliv] Holographic will, Wikipedia, retrieved May 6, 2020.