Décision

[1]           The appellant appeals the July 22, 2019 judgment of the Honourable Mr. Justice Gregory Moore of the Superior Court, District of Montreal, probating the handwritten will of her father, Abdul Rauf Khan, deeming unwritten the conditions set out in that will, declaring that the intent of the testator was that his estate be distributed in accordance with a scheme set out in the will and striking out the universal legacy in her favour.

[2]           For the concurring reasons of Bich J.A. and Mainville J.A., THE COURT:

[3]           ALLOWS the appeal in part only;

[4]           SETS ASIDE paragraph [39] of the July 22, 2019 judgment of the Superior Court and REPLACES it by the following:

[39]      DECLARES without effect both legacies set out in the holograph will of Adbul Rauf Khan dated January 26, 2014, and FURTHER DECLARES that the remaining estate of Adbul Rauf Khan, after the payment of debts, funeral expenses and testamentary expenses, is to devolve and be administered by the liquidator appointed under the will in accordance with the rules governing the legal devolution of successions.

[5]           THE WHOLE without costs, given the divided success on appeal.

[6]           For the reasons he sets out, Hamilton, J.A. would have allowed the appeal, with legal costs, set aside paragraph [39] of the July 22, 2019 judgment of the Superior Court, replaced it with a declaration stating that the appellant is the universal legatee of the remaining estate of Adbul Rauf Khan, after the payment of his debts, funeral expenses and testamentary expenses, and declared without effect the subsidiary legacy set out at page 3 of his holograph will dated May 26, 2014.

[7]           For the following reasons, I agree with the manner in which my colleague Mainville J.A. proposes to rule on the appeal.

[8]           Firstly, as underlined by my colleague, the respondent (and, likewise, the appellant needless to say) accepts the finding of the trial judge that the condition attached to the two legacies found in the holograph will of the Testator is impossible. This characterization of the condition might have been debatable, but the respondent’s admission, as it relates to a question of fact, is binding upon the Court.

[9]           The condition, being impossible, is therefore deemed unwritten (“réputée non écrite”), in accordance with art. 757 para. 1 C.C.Q., which enacts an absolute and irrebuttable presumption in this regard (art. 2847 para. 2 C.C.Q.).

[10]        Secondly, the parties also submit that, as a result of the carving out of the condition, we are left with a will containing two apparently irreconcilable legacies: both were formerly subject, as the two opposite sides of the same coin, to a condition now deemed unwritten and, consequently, they have both become unconditional.[1] Hence, according to the parties,[2] we are faced with an ambiguous will, a situation that should be resolved by resorting to the usual methods of interpreting wills and finding the testator’s intent (text, context and, according to the respondent, extrinsic evidence - art. 1425 and ff. C.C.Q.).[3]

[11]        The appellant thus invites the Court, in order to ascertain the Testator’s true intent, to rely solely on the words, logic and structure of the will. In her opinion, these elements show that “the testator’s primary intent, expressed in plain wording, is clear: to make his daughter [the appellant] a universal legatee”[4] and that the second legacy is clearly subordinated to the first one once the condition is removed. Extrinsic evidence being a subsidiary interpretative tool to be used only absent a clear text and context, the trial judge should not have relied on it. Neither should he have referred to the condition as a valid indication of the Testator’s intent, thereby unduly resurrecting what was deemed unwritten.

[12]        For his part, the respondent argues that, once the condition is set aside as unwritten, we are indeed left with two unconditional legacies that cannot be reconciled or interpreted without having recourse to extrinsic evidence, which in this case demonstrates that the Testator intended the second legacy to take precedence over the legacy to the appellant.

[13]        Surprisingly, neither party referred to the case law or legal doctrine relating to art. 757 C.C.Q. or its predecessor, art. 760 C.C.L.C. Neither examined the scope and effects of these articles or the potential impact of the difference between art. 757 (the condition is deemed unwritten) and art. 1499 C.C.Q. (the condition is null as well as the obligation that depends on it). Neither debated the possibility that the second legacy could be viewed as inextricably linked to the condition and that it should necessarily fall with it. Neither discussed the “cause impulsive et déterminante,” a concept born in France (incidentally to the application of art. 900 of the French Code civil) and imported to Quebec by some - but not all - authors, but largely ignored by the courts (at least since 1994, when the Civil Code of Quebec came into force).[5] Neither addressed the potential “acausalité” of art. 757,[6] etc.

[14]        It is true that, at the end of the hearing before our Court, appellant’s counsel, in reply, briefly alluded to the judgment rendered by the Superior Court in Marinacci v. Bartolomucci,[7] in which a will containing a condition contrary to public order (and thus struck out) was annulled and entirely set aside in favour of a previous notarized will. Counsel implied that, similarly, the Testator’s will should be annulled, leading to the same outcome i.e. his client remains her father’s universal legatee under his previous notarized will. This argument cannot be accepted, if only because the Marinacci judgment, which appears to implicitly refer to the theory of the “cause impulsive et déterminante,” is a “cas d’espèce” resting on voluminous extrinsic evidence of the testator’s actual intent and of the unusual circumstances surrounding the making of the new will, supporting the conclusion that “la seule raison d'être du testament olographe étant de déshériter Rosy à moins qu'elle ne quitte Wadii Jafaar, ce testament n'a pas de considération légalement valide et est nul et sans effet.”[8] There is no such extrinsic evidence in the present case. More importantly, the appellant’s argument was not raised in the notice of appeal nor in the appellant’s brief and could not be brought up at this late stage of the instance.

[15]        All this being said, considering the peculiar manner in which the debate was framed before the Court (as it was before the trial judge) and the narrow arguments submitted by the parties, I cannot but agree with my colleague Mainville J.A. that the two legacies left in the will, once the condition is crossed out, are indeed irreconcilable and that neither the text, context or extrinsic evidence (the latter being almost non-existent and, at best, so fragile as to have little or no probative value) can help us give them effect, reconcile them or conclude that one of them is to take precedence. We find ourselves in one of the rare cases where we have no choice but to resort to the rules of intestate succession. As for the rest (revocation of prior wills, appointment of a liquidator, payment of debts, funeral expenses and testamentary expenses), there is no reason to invalidate the will and I also agree with my colleague on this point. I therefore suggest to dispose of the appeal as he proposes.

[16]        Sabrina Khan (“Sabrina” or the “appellant”) appeals the July 22, 2019 judgment of the Honourable Mr. Justice Gregory Moore of the Superior Court, District of Montreal,[9] probating the handwritten will of her father, Abdul Rauf Khan (the “Testator”), deeming unwritten the conditions set out in that will, declaring that the Testator’s intent was that his estate be distributed in accordance with a scheme set out in the will and striking out the universal legacy in her favour.

THE CONTEXT

[17]        The Testator has two daughters. The first, Shareen Khan (“Shareen”) was born of a first marriage. The second, the appellant Sabrina, was born from a marriage with Naureen Aysha. On April 13, 2006, the Testator executed a notarial will bequeathing all his property and rights to his younger daughter Sabrina and providing that should she die before the age of 25, the bequest would then be to the benefit his older daughter Shareen:[10]

ARTICLE VI UNIVERSAL LEGACY

I give and bequeath to my daughter SABRINA KHAN all my property and transmissible rights hereby designating her my sole Universal Legatee.

If my daughter SABRINA KHAN should fail to survive me by THIRTY (30) days or renounces my Estate or for any reason fails to inherit my Estate, I give and bequeath all my property and transmissible rights to my daughter SHAREEN KHAN, hereby constituting her my Universal Legatee.

If my daughter SABRINA KHAN survives me by thirty days but should not survive until she attains the age of twenty-five (25) years, her share or any residue thereof shall be delivered to my daughter SHAREEN KHAN.

[18]        A little over six years after this will was executed, the Testator proceeded to divorce Naureen Aysha, Sabrina’s mother. Sabrina was then 16 years old and attending high school. Divorce proceedings were served on her mother on October 16, 2012.

[19]        That same day, after the divorce papers were served, Sabrina went to a police station and signed a witness statement asserting that her father told her he would kill her and her mother if they continued to stay in the family home and did not move out within two days. Criminal charges against the Testator followed on October 25, 2012. The Testator vehemently denied these accusations. The charges did not result in any conviction, but they did serve to secure restraining orders against the Testator, thus impeding his contacts with Sabrina.

[20]        The witness statement, the charges and the restraining orders strained the relationship between the Testator and Sabrina, who became estranged from one another. Though it appears from the record that the Testator tried to resume a relationship with Sabrina, his efforts were not reciprocated, save for requests for money.

[21]        On January 26, 2014, the Testator made a handwritten will. This new will reads as follows:

I ABDUL KHAN, Born on [...] 1942, age 72, residing at [address not reproduced].

I hereby Cancell (null) all the Previous wills, I have made of every nature & kind whatsoever.

I appoint Mr. Siddique Katiya (Friend) & my nephew Mr. Masood Ahmad Khan to look after my Estate & hereinafter refer to them as “My Executor & Trustee”.

My Friend Siddique Katyia Address: [Address and telephone numbers not reproduced]

My nephew Mr. Masood Ahmad Khan [Address and telephone numbers not reproduced]

Contd. from Page 1

Pay my just debts, funeral expenses & testamentary expenses.

Beneficiary:

To give the residue of Estate to my youngest Daughter Sabrina Khan, born [...] 1996.

Note: My Ex wife Aysha Naureen & my ex wife Son Ahmad Khan will NOT benefit in any way from my will.

The following conditions to apply to Beneficiary my daughter Sabrina Khan to be entitlement for Estate.

My daughter Sabrina Khan has to accept that “She has False Charges to Police on Oct. 16^th 2012. She has to “True Apoligized” to my Executor & Trustee and as well Religious Muslim Iman, Also that her mother Press the false Charges.

*Develop mutual respectable relations with my family members.

Page 2 of 2

Contd. from Page 2:-

In case the above mentioned Conditions are not met by Sabrina Khan

My Division of Estate as follows:

1)    Thirty Percent to my daughter: - Sabrina Khan

2)    Twenty five Percent to my older daughter: Shareen Khan

3)    Twenty Percent to my Brothers equally

Abdul Basit Khan (12.5%)                                                      

Abdul Shakoor Khan (12.5%)

3)     Twenty Percent to Charity as follows:

3.1: - 10% To Montreal Islamic Mosque (choose by Mr. Katayia)

3.2: - 10% To My father Mosque in Pakistan - Contact my Brother: - Abdul Basit Khan

I signed my name to my last Will and Testament, written on these Three Pages

ABDUL RAUF KHAN

[Signature]

Jan. 26^th /2014

Page 3 of 3

(Transcribed as in original)

[22]        The Testator died in Quebec on July 4, 2017.

[23]        On June 6, 2018, the liquidator of his will, the respondent in this appeal (the “Liquidator”), asked the Superior Court to probate the will. This was followed on July 12, 2018 by an application for a declaratory judgment submitted by Sabrina seeking that the Superior Court declare the conditions set out in the will contrary to public order and impossible.

THE JUDGMENT OF THE SUPERIOR COURT

[24]        The trial judge probated the handwritten will and declared the impugned conditions both impossible and contrary to public order. The judge then concluded that, without the conditions, the terms of the will were ambiguous. He resolved this ambiguity as follows:[11]

[26]      The evidence demonstrates that Mr. Khan did not want to grant a universal legacy to Sabrina so long as she maintained the allegations made in her witness statement.  Otherwise, he would not have revoked his 2006 will.  The revocation is stated clearly on the first page: “I hereby cancell [sic] (null) all the previous wills I have made of every nature & kind whatsoever.”

[27]      The conditions he put in his 2014 will, although deemed unwritten for the purposes of distributing Mr. Khan’s succession, are a helpful guide to interpreting his intention.  They reflect his on-going belief that Sabrina’s witness statement was false and his desire that she not be his sole heir so long as she maintained those criminal accusations against him and remained estranged from his family.  

[28]      Mr. Khan’s journal entries and emails from October 2012, although possibly self-serving, demonstrate that he hoped Sabrina would eventually accept his invitations to re-establish their relationship.  Until then, he accepted the distance between them and arranged his life accordingly.

[29]      Consequently, Mr. Khan’s will must be interpreted in keeping with his desire to revoke the universal legacy made to Sabrina in his 2006 will.  Only the legacies by general title set out on page 3 of the 2014 will reflect this desire.  Mr. Katiya explained that this distribution is consistent with the Koran, which is a further clue to Mr. Khan’s intention.

ISSUES IN APPEAL

[25]        There is no dispute in appeal as to the validity of the 2016 handwritten will.

[26]        There is also no longer any dispute between the parties as to the trial judge’s conclusion that the conditions set out in the will are against public order and therefore deemed unwritten. That being said, the judge’s conclusion on the public order issue may be debatable in the peculiar circumstances of this case; however, since this issue was not raised in appeal, it will not be dealt with.

[27]        Though Sabrina identifies in her argument a long series of questions in appeal, these all turn on the same issue, namely whether the trial judge erred in interpreting the will once he concluded that the conditions stipulated therein were deemed unwritten. Sabrina essentially submits that the trial judge (a) should not have interpreted the will since the parties had not asked him to do so; (b) erred in finding that the will was ambiguous once the conditions were deemed unwritten, and (c) erred in using extrinsic evidence to resolve the ambiguity. Sabrina’s basic proposition is that once the impugned conditions are withdrawn from the will, its remaining terms are clear: she inherits the entirety of the estate since the bequest made to her would have precedence over the other bequest as it would be hierarchically superior. She refers to extrinsic evidence of the Testator’s intent in order to establish this hierarchy, and submits that the words “if Sabrina Khan renounces to the estate or for any reason fails to inherit” should be read into the will in replacement of the words “In case the above mentioned conditions are not met by Sabrina Khan”.[12]

[28]        The Liquidator rather submits that the trial judge properly found the will ambiguous once he concluded that the impugned conditions were deemed unwritten. The Liquidator adds that the trial judge properly resolved the resulting ambiguity by ascertaining the Testator’s true intent. In the Liquidator’s opinion, both bequests are equally subject to the same impugned conditions. Once these conditions are read out of the will, both bequests are clearly contradictory, leading to an ambiguity that must be resolved by referring to the Testator’s intent ascertained through extrinsic evidence. The extrinsic evidence in this case inexorably leads to the conclusion that the bequest to Sabrina, her sister Shareen, her two uncles and the two mosques best reflects the true intentions of the Testator.

[29]        Questioned by the Court at the appeal hearing, the Liquidator also acknowledged, as he had done in the Superior Court,[13] that should the outright contradiction between the two bequests not be resolvable, then the two bequests should not stand and the provisions of the Civil Code of Québec dealing with the legal devolution of successions should govern the distribution of the estate, a solution which, in the Liquidator’s opinion, may also well be consistent with the Testator’s intent, since both his daughters would then share equally. Sabrina’s reply to this is that in such circumstances, the previous notarized will should govern the distribution of the estate.

DISCUSSION

[30]        Sabrina first submits that the trial judge should not have interpreted the will once he concluded that the impugned conditions were deemed unwritten. That submission must be rejected. While it is true that under article 10 of the Code of Civil Procedure (“CCP”) a court may not adjudicate beyond what is sought by the parties, article 268 CCP also provides that a court may, at any time before judgment, draw the parties attention to any deficiency in the procedure and authorize the parties to remedy it. This is a long-standing and broad discretionary power.[14]

[31]        It was therefore permissible for the trial judge to write to the parties’ attorneys offering them an opportunity to make further representations on the question of how to interpret or to apply the will should the conditions be deemed unwritten.[15] Both parties responded with detailed written submissions in which neither raised any objection to having the matter of interpretation dealt with by the judge. In these circumstances, there is no merit to Sabrina’s first submission.

[32]        I add that Sabrina’s proceedings in first instance necessarily implied that the judge had to determine the validity and effect of the bequests set out in the will once the impugned conditions were deemed unwritten and had to interpret the will to reach a conclusion on this matter.

[33]        We must therefore now turn to the substantive issues raised in appeal.

[34]        The first paragraph of article 757 of the Civil Code of Quebec (“CCQ”) stipulates that a condition in a will that is impossible or contrary to public order is deemed unwritten:

[35]        Contrary to the provisions of article 1499 CCQ dealing with obligations generally, a testamentary bequest is not necessarily null because the conditions on which it depends are impossible or contrary to public order.[16] Rather, under article 757 CCQ, it is the impossible conditions and those contrary to public order set out in the will which are deemed unwritten, not the bequest itself.

[36]        However, this is not always the case as there may be exceptions to this general rule. When the impugned conditions are the immediate and determining cause of the testamentary bequest (“la cause impulsive et déterminante”), the position held in France is that, in appropriate circumstances, the bequest itself may be unenforceable.[17] This position has been adopted by the legal doctrine commenting on Quebec testamentary law (save one exception),[18] though there has been little discussion of this by the courts in Quebec.

[37]        In this appeal, the respondent Liquidator does not submit that the bequest to Sabrina may not stand without the conditions attached to it. In fact, both Sabrina and the Liquidator argued the case before the trial judge and in this Court on the premise that the bequests could stand without the conditions. Consequently, the trial judge did not cancel the bequest to Sabrina on that basis.

[38]        The judge rather concluded that once the impugned conditions are read out of the will, the two bequests become contradictory to one another and, as a result, the bequests become ambiguous. He further concluded that this ambiguity could only be resolved by referring to extrinsic evidence to ascertain the Testator’s true intent. Turning to the extrinsic evidence before him, the trial judge found that the Testator’s revocation of his prior will conclusively demonstrated that his clear intent was not to allow an unconditional bequest of his entire estate to Sabrina, as there would otherwise have been no need for a new will.

[39]        The trial judge’s reasoning, however, is circular and internally inconsistent. On the one hand, the conditions must be deemed unwritten under article 757 CCQ as they are against public order; on the other hand, the same conditions must nevertheless be enforced de facto as they reflect the true intentions of the Testator not to provide an unconditional bequest of his entire estate to Sabrina.

[40]        Though it is possible for a court to rely on extrinsic evidence of the testator’s true intent to interpret an ambiguous will,[19] reliance on such evidence in this case is misplaced.  Indeed, there is here no dispute as to the Testator’s true intent as is it manifest that he did not wish Sabrina to inherit the entirety of the estate if she did not apologize in accordance with the conditions stipulated in the will. It is only once those conditions are deemed impossible and against public order, hence unwritten, that the will becomes ambiguous. That ambiguity is thus entirely artificial as it results from judicial and legislative fiat. It would be improper to then use the Testator’s clear intention to resolve this artificial ambiguity as that intention was previously deemed to be against public order.

[41]        Rather, as provided under article 757 CCQ, the will must be read as if the impugned conditions are “deemed unwritten”. In this case, the impugned conditions affect both bequests, as they are both conditional on the fulfillment or not of their terms. As a result, by operation of article 757 CCQ, the following words found in the will must be deemed unwritten:

The following conditions to apply to Beneficiary my daughter Sabrina Khan to be entitlement for Estate.

My daughter Sabrina Khan has to accept that “She has False Charges to Police on Oct. 16^th 2012. She has to “True Apoligized” to my Executor & Trustee and as well Religious Muslim Iman, Also that her mother Press the false Charges.

*Develop mutual respectable relations with my family members.

In case the above mentioned Conditions are not met by Sabrina Khan

[42]        As the trial judge rightfully found, once these words are read out of the will, two contradictory bequests result, one giving the residue of the estate to Sabrina, the other dividing the estate between Sabrina, her sister Shareen, her uncles Basit and Shakoor, and two mosques. In normal circumstances, this ambiguity would be resolved by referring to the testator’s intent through an analysis of extrinsic evidence. However, in the peculiar circumstances of this case, it is not appropriate to rely on the Testator’s true intent to resolve the ambiguity, as that intent was found to be contrary to public order and therefore legally irrelevant.

[43]        Nor may the contradiction between both bequests be resolved by establishing a hierarchy between them, as Sabrina suggests.

[44]        First, in the absence of any specific language to the contrary in the will itself, the fact that the bequest to Sabrina is first set out in the will does not, in and of itself, confer a priority on this bequest. Indeed, the Testator could have drafted a will having the same result by placing the bequest to his two daughters and his brothers first and the bequest to Sabrina second, using language such as “I bequeath my estate to my daughters Sabrina, Shareen and my brothers Basit and Shakoor unless Sabrina provides an apology for the false accusations made against me, in which case she inherits all my estate”.  In such a case, once the impugned conditions are written out of the will, one could not conclude that the bequest to Sabrina, Shareen, Basit and Shakoor has priority over the bequest to Sabrina alone on the simple basis that it is placed first in the will. Therefore, without specific language setting out a priority, nothing truly turns on the simple order of placement of the bequests on the paper on which the will is written.

[45]        Second, in this specific case, a priority between the bequests may not be determined by referring to the Testator’s intent. As the trial judge found, it is the bequest to the two daughters, the two brothers and the two mosques which better reflects the Testator’s true intent in the circumstances of this case. However, that intent rests on a premise that was found to be against public order, and it would therefore be inappropriate to use it so as to confer a priority on that bequest.

[46]        Third, Sabrina also suggests that since the Testator made her a universal legatee, this would be evidence of an “intent” on his part to prioritize his bequest to her. This interpretation of the Testator’s “intent” is artificial and self-serving and finds no basis whatsoever in reality. As already noted, the Testator’s true intent was exactly the contrary to that which Sabrina asks the Court to conclude, the bequest dividing the estate between Sabrina, her sister and uncles better reflecting the Testator’s final wishes.

[47]        Fourth, Sabrina’s suggestion that the will should be read with a provision giving priority to the bequest made to her cannot be accepted. There is no doubt that, in this specific case, the only way to find that the bequest of the entire estate to Sabrina has priority over the other bequest is to read into the will specific language to that effect, such as adding the words “if Sabrina Khan renounces to the estate or for any reason fails to inherit” between the two bequests, as Sabrina suggested to the trial judge in her written submissions to him. However, a court may not simply add words in a will unless they truly reflected the Testator’s true intent; yet that true intent is precisely the opposite in this case, as the trial judge found.

[48]        Consequently, we are left with two contradictory bequests of equal rank and value, without any means of resolving the resulting contradiction by referring to the Testator’s intent, since that intent was found to be contrary to public order. Thus, faced with two contradictory and irreconcilable bequests once the conditions are written out of the will, and with no legal means to resolve the contradiction, both bequests must be deemed without effect. Indeed, a legacy is null when the designation of the legatee is uncertain, a principle expressed by Pothier[20] and reiterated many times thereafter.[21]

[49]        The will itself is not null as a result of the contradiction since article 1438 CCQ - which sets out a rule for contracts which is transposable to wills - provides that a clause which is null or deemed unwritten does not render a contract invalid in other respects, unless it appears that the contract may be considered only as an indivisible whole. This is not the case here, as many other provisions of the will remain valid and enforceable without the bequests. Indeed, the provisions of the will dealing with the revocation of the prior wills, the appointment of a liquidator, the payment of debts, funeral expenses and testamentary expenses, as well as the exclusion from the succession of the Testator’s former wife and stepson, are all valid and enforceable provisions, as article 705 CCQ specifically allows for a will dealing solely with such matters:

[50]         Therefore, the remaining estate is to devolve in accordance with the rules governing the legal devolution of successions, as provided by article 736 CCQ:

[51]        In closing, I note that if the French civil law doctrine of the immediate and determining cause of the testamentary bequest (“la cause impulsive et déterminante”) had been applied to this case - a matter which need not be decided in the context of this case - the result would have been the same. Indeed, as the immediate and determining causes of both legacies are the impugned conditions, both legacies would have been unenforceable under this doctrine, thus leading to the application of the rules governing legal devolution of successions in this case.

[52]        I must express my disagreement with the position set forth by my colleague Hamilton J.A. in his reasons. He treats the principle set out in article 757 CCQ (reproduced above) as a mechanical rule. This principle, which originated in Roman civil law, is not applied mechanically in civil law jurisdictions, but rather contextually. Consequently, the approach proposed by my colleague runs contrary to the civilian tradition of reasoned application of the law. A simple set of examples will suffice to make the point.

[53]        If John’s will provides that his wife Mary shall inherit his estate on the condition she not wed William, that condition is contrary to public order and consequently deemed unwritten, leading to conclude that the estate devolves to Mary, whether or not she weds William. However, if John’s will sets out that William shall inherit his estate on the condition he weds Mary so as to take care of her after his death, that condition is also contrary to public order and consequently deemed unwritten. Does John’s estate then flow to William? The answer under the civil law is no, since the immediate and determining cause of the testamentary bequest (“la cause impulsive et déterminante”) was for Mary to be provided for after John’s death. In that case, both the condition and the bequest are deemed unwritten. However, if we follow my colleague’s mechanical rule, the estate would devolve to William whether or not he weds Mary. This is not the proper way to apply the civil law, as acknowledged by the bulk of the legal doctrine in both France and Quebec[22].

[54]        Yet, my colleague nevertheless submits that the doctrine of the immediate and determining cause of the testamentary bequest (“la cause impulsive et déterminante”) does not apply in Quebec. However, confronted with the example set out above in the previous paragraph, he nevertheless recognizes that this doctrine must apply to resolve those types of situations. I have some difficulty reconciling these two propositions.

[55]        Moreover, my colleague’s assertion that the application of this doctrine has not been supported by authors and the courts since the coming into force of the Civil Code of Quebec is plainly wrong. Addressing directly the issue raised by my colleague, author Germain Brière explains that the rule set out in the first paragraph of article 757 CCQ was adopted on the understanding that it was subject to exceptions, including the exception of the immediate and determining cause of the testamentary bequest (“la cause impulsive et déterminante”):[23]

La distinction doctrinale précitée conserve-t-elle son intérêt en présence de l’article 757 C. civ.? Est-il encore possible de soutenir que la condition impossible ou contraire à l'ordre public qui serait considérée comme essentielle dans la pensée du testateur, qui, en d'autres termes, serait la cause impulsive et déterminante d'une disposition testamentaire, entraînerait la nullité du legs lui-même, plutôt que d'être tout simplement réputée non écrite? En proposant, au sujet des legs, un texte substantiellement semblable à celui du premier alinéa de l'article 757 C. civ., l'Office de révision du Code civil a tout simplement observé qu'il était conforme au droit existant. Selon le commentaire présenté lors des travaux parlementaires, la règle de l'article 757 al. 1 C. civ. souffre des exceptions, lesquelles sont «admises lorsque la condition a été la cause impulsive et déterminante du testateur ou que ce dernier a expressément subordonné l'exécution du legs à l'accomplissement de la condition»; en pareils cas, c'est la disposition testamentaire tout entière qui serait annulée.

(Emphasis added)

[56]        Author Comtois, in the version of his book on successions updated by author Beaulne, also takes the same position:[24]

Si la condition est la cause de la disposition, si cette dernière en dépend, en est l’effet, il est inadmissible que l’on maintienne la disposition qui devient le prix de l’acte illicite, car alors le legs serait tenu pour valide, bien que fait sans cause, ou du moins, sans cause licite. Nous avions également noté que, selon l’article 900 du Code civil français, « dans toute disposition entre vifs ou testamentaire, les conditions impossibles, celles qui sont contraires aux lois ou aux bonnes mœurs, seront réputées non écrites ». Or, la jurisprudence française a apporté une nuance en déclarant que la condition impossible ou illicite entraîne la nullité de la donation ou du legs auxquels elle a été apposée, lorsqu’elle a été l’objectif principal et la cause impulsive et déterminante de la libéralité.

(Emphasis added)

[57]        Furthermore, this Court as well as the superior court have determined on numerous occasions that a reasoned approach - as opposed to the mechanical approach favoured by my colleague - must govern the impact of the nullity of a testamentary provision.[25]

[58]        In closing, my colleague’s proposal in obiter that the outcome should be to give effect to both legacies by distributing one-half the estate according to each legacy is entirely based on his subjective view of the matter. He refers to no provision of the CCQ which would allow such an outcome, nor does he refer to any leading doctrine or jurisprudence in support of his position. Rather, my colleague proposes a misplaced analogy with the second paragraph of article 756 CCQ, which concerns only legacies by particular title when the testator has not allotted the share of each colegatee or when the entire property is bequeathed by the same act to several persons separately. It is simply a rebuttable presumption as to the intent of the testator: if the testator bequeaths the same property to more than one person, both legacies are presumed to be made jointly[26].

[59]        It seems obvious to me that article 756 CCQ does not apply in this case. First, the first part of the Testator’s will provides a universal legacy to Sabrina[27] while the second part provides several legacies by general title[28]. Such legacies are clearly not within the scope of article 756 CCQ. Second, if they had been captured by article 756 CCQ, the intent of the Testator in this case was clearly not to bequeath the property jointly.

[60]        For these reasons, I propose that the Court allow the appeal in part, without legal costs given the divided success, so as to set aside paragraph [39] of the July 22, 2019 judgment the Superior Court, District of Montreal, and replace it by the following:

[39]      DECLARES without effect both legacies set out in the holograph will of Adbul Rauf Khan dated January 26, 2014, and FURTHER DECLARES that the remaining estate of Adbul Rauf Khan, after the payment of debts, funeral expenses and testamentary expenses, is to devolve and be administered by the liquidator appointed under the will in accordance with the rules governing the legal devolution of successions.

[61]        I have reviewed the reasons prepared by my colleague Mainville, J.A. I agree with him that the appeal should be allowed, but, with respect, I do not agree with his reasoning or his proposed disposition.

[62]        The relevant facts are set out by my colleague. For ease of reference, I will nevertheless set out the essential terms of the two wills executed by the Testator.

[63]        Under the first will, a notarial will executed in 2006, he bequeathed all his property to his younger daughter Sabrina which she was to receive when she turned 25 years old. If she did not survive the Testator or if she died before turning 25 years old, the property would instead go to his older daughter Shareen.

[64]        The second, handwritten will, dated January 26, 2014, cancelled his previous wills and provided the following legacies:

Beneficiary:

To give the residue of Estate to my youngest Daughter Sabrina Khan, born [...] 1996.

Note: My Ex wife Aysha Naureen & my ex wife Son Ahmad Khan will NOT benefit in any way from my will.

The following conditions to apply to Beneficiary my daughter Sabrina Khan to be entitlement for Estate.

My daughter Sabrina Khan has to accept that “She has False Charges to Police on Oct. 16^th 2012. She has to “True Apoligized” to my Executor & Trustee and as well Religious Muslim Iman, Also that her mother Press the false Charges.

*Develop mutual respectable relations with my family members.

In case the above mentioned Conditions are not met by Sabrina Khan

My Division of Estate as follows:

4)    Thirty Percent to my daughter: - Sabrina Khan

5)    Twenty five Percent to my older daughter: Shareen Khan

6)    Twenty Percent to my Brothers equally

Abdul Basit Khan (12.5%)                                                      

Abdul Shakoor Khan (12.5%)

3)     Twenty Percent to Charity as follows:

3.1: - 10% To Montreal Islamic Mosque (choose by Mr. Katayia)

3.2: - 10% To My father Mosque in Pakistan - Contact my Brother: - Abdul Basit Khan

 [Transcribed as in original]

[65]        The second will essentially provides a universal legacy in favour of Sabrina, which is conditional on her doing certain things, as well as a universal legacy in favour of Sabrina, Shareen, the Testator’s two brothers and two mosques “In case the above mentioned Conditions are not met by Sabrina Khan”.

[66]        The trial judge concluded that the conditions were impossible and against public order.[29] He then applied Article 757 C.C.Q., which provides that a condition which is impossible or contrary to public order is deemed unwritten, and concluded that he must deem unwritten both (1) the conditions attached to Sabrina’s legacy, as well as (2) the words “In case the above mentioned Conditions are not met by Sabrina Khan” attached to the second legacy. Once those words are removed, according to the trial judge, there is a conflict between the two legacies and an ambiguity. He resolves the ambiguity by interpreting the testator’s intention:

[31]      […]  Mr. Khan’s will reveals two intentions: (i) to revoke the universal legacy to Sabrina that is found in his 2006 will; and (ii) to have Sabrina accept that the criminal accusations she made against him are false.  He left the door open for her to recant her allegations, however, the mechanism he chose is not legal.  When we discard that intention, the only one left is the revocation of the universal legacy in favour of Sabrina.

[67]        My colleague follows that reasoning to a point. Like the trial judge, he deems the conditions attached to the first legacy and the words “In case the above mentioned Conditions are not met by Sabrina Khan” attached to the second, unwritten and therefore he finds a conflict. However, he states that it is inappropriate to rely on the Testator’s intent in order to resolve that ambiguity, because the intent was already found to be contrary to public order and therefore legally irrelevant. He also rejects Sabrina’s argument that her legacy should take precedence because there is no clear language to that effect in the will, with the result that he is left with two contradictory legacies of equal rank and value and no means to resolve the contradiction. He therefore deems both legacies without effect and proposes that the estate be distributed in accordance with the rules on intestacy.

[68]        In sum, the result of the trial judge’s reasoning is that the conditions are deemed unsatisfied, so that the estate is distributed according to the second legacy. My colleague’s reasoning effectively deems both legacies unwritten and instead distributes the estate as on an intestacy.

[69]        I disagree with both lines of reasoning.

***

[70]        Article 1499 C.C.Q. sets out the general rule in Quebec law that an impossible condition or one contrary to public order is null and renders null the obligation that depends on it:

[71]        However, the rule is different as regards conditional legacies. Under Article 757 C.C.Q., only the condition is deemed unwritten:

[72]        The Civil Code of Lower Canada makes a distinction between gifts inter vivos and wills:

[73]        The legislative intent is clear: the invalid condition is deemed unwritten but the legacy is valid and free of any condition. Professors Beaulne and Morin summarize the state of the law in the following terms:

785. — La condition est réputée non écrite. — Précision sur laquelle nous nous devons d’insister : dans tous les cas où on juge le legs conditionnel invalide, en réalité, ce n’est que la condition imposée au legs qui est réputée non écrite, conformément à ce que prévoit l’article 757, al. 1 C.c.Q. En effet, le legs lui-même — c’est-à-dire la disposition de biens à cause de mort — demeure tout à fait valide : le légataire a donc droit au legs stipulé en sa faveur, exempt toutefois de la condition qui y était rattachée. Rappelons que la situation diffère en matière de donation puisque l’article 1499 C.c.Q. dispose que la condition dont dépend l’obligation qui est impossible, prohibée par la loi ou contraire à l’ordre public est nulle et rend nulle l’obligation qui en dépend.[30]

[Emphasis added and footnotes omitted]

[74]        This position is not controversial. There are many cases where the courts invalidate a condition and give effect to the legacy, generally without much comment or debate.[31]

[75]        In my view, the proper interpretation of the will is that it creates a primary legacy in favour of Sabrina which is subject to conditions, and a subsidiary legacy dividing the estate six ways if she does not meet the conditions.

[76]        My conclusion that the legacy to Sabrina is primary flows from three considerations.

[77]        First, the language of the will creates a clear priority in favour of Sabrina. Under the heading “Beneficiary”, the Testator first provides “To give the residue of Estate to my youngest Daughter Sabrina Khan”. He then adds in a separate paragraph, “The following conditions to apply to Beneficiary my daughter Sabrina Khan to be entitlement for Estate” and a little further provides “In case the above mentioned Conditions are not met by Sabrina Khan”.

[78]        Further, Sabrina was the universal legatee under the previous will. The new will does not, as the trial judge found, reveal an intention to revoke the universal legacy in her favour, but rather an intention to add conditions to it. The Testator also provided what happened if she did not meet the conditions, but the legacy to Sabrina remained primary.

[79]        Finally, the conditions imposed on Sabrina’s legacy are conditions that she can in principle choose to meet, and she inherits if she does so. The other beneficiaries have no control over the situation and have no rights whatsoever unless Sabrina decides not to meet the conditions or fails to meet them. The Testator’s clear intention was that Sabrina inherit if she complied with his conditions.

[80]        The trial judge and my colleague take a different route. As mentioned above, they both start their analysis by deeming unwritten both the conditions and the words “In case the above mentioned Conditions are not met by Sabrina Khan” attached to the subsidiary legacy. They thereby eliminate the words that establish the priority between the legacies, and are left with two legacies of equal rank and value. In my view, this approach creates an artificial conflict and ambiguity where there was none.

[81]        The result in our case should therefore be straightforward: once it is established that the conditions are impossible and contrary to public order, they are deemed unwritten and Sabrina inherits free of any condition. The subsidiary legacy, which applies only if the conditions are not met, has no effect and can be deemed unwritten as well.

***

[82]        In France, the doctrine cited by my colleague suggests that there is an exception to this rule and that the conditional legacy itself may be unenforceable when the impugned conditions are the immediate and determining cause of the testamentary legacy (“la cause impulsive et déterminante”).

[83]        It is not necessary to decide in this judgment whether this exception exists or not under Quebec civil law as neither party pleaded it.

[84]        However, I would make two points.

[85]        First, Professors Beaulne and Morin, in their update of Professor Brière’s book, conclude that this exception, if ever it existed in Quebec law, has not been supported by the authors or applied by the courts since the coming into force of the Civil Code of Quebec:

786. On a observé, au cours des travaux parlementaires, que lorsque la condition a été la cause impulsive et déterminante du legs ou que le testateur a expressément subordonné l’exécution du legs à l’accomplissement de la condition, c’est la disposition testamentaire tout entière qui devait être annulée. Depuis la mise en vigueur du Code civil du Québec toutefois, telle distinction n’a jamais été soutenue par les auteurs, ni retenue par la jurisprudence.[32]

[Emphasis added]

[86]        Further, I have some concerns about the scope of the French exception and its apparent reliance on the testator’s intention, which will have been found to be impossible or contrary to public order before the court considers any exception. Any exception to the clear rule set out in Article 757 C.C.Q. should be limited to exceptional circumstances such as the example given by my colleague, where the legacy to a stranger makes no sense without the condition. It should not extend to the present matter, where Sabrina is his daughter and the Testator had previously made her his universal legatee and now added an illegal condition.

***

[87]        One final note.

[88]        There may be cases where, instead of a primary and a subsidiary legacy, the will provides two alternative legacies and the means to decide which one is effective is impossible or contrary to public order or for some other reason does not work. In such a case, the court may be left with two conflicting legacies and no means to resolve the conflict. But that is not the case here.

[89]        Even if I agreed with the trial judge and my colleague that this was such a case, I would not agree with the disposition proposed by either one.

[90]        I readily concede that the outcome proposed by my colleague appears very reasonable - instead of receiving 100% if she meets the conditions or 30% if she does not, Sabrina would receive 50%. However, this appearance of reasonableness is misleading: Shareen, who is entitled to nothing if Sabrina meets the conditions and 25% if she does not, would receive 50%, which is clearly more than the Testator intended, and the other legatees under the subsidiary legacy would receive nothing. Moreover, it is entirely fortuitous, and occurs only because Sabrina’s share of the intestate distribution happens to fall between the two legacies. If the Testator had two other children to whom he intended to leave nothing, they would nevertheless receive 50% of his estate on an intestate distribution and Sabrina’s share would drop to 25%, which is less than she would receive under either legacy in the will.

[91]        I would suggest that, rather than choosing one legacy or the other (like the trial judge) or neither (like my colleague), the proper outcome would be to give effect to both legacies, by distributing one-half of the property according to each legacy.[33]

***

[92]        For all of the foregoing reasons, I am of the view that the conditions should be deemed unwritten and the conditional legacy in favour of Sabrina should be treated as unconditional. I propose that the Court allow the appeal, with legal costs, so as to set aside paragraph [39] of the July 22, 2019 judgment the Superior Court, District of Montreal, and replace it by the following:

[39]      DECLARES that Sabrina Khan is the universal legatee of the remaining estate of Adbul Rauf Khan, after the payment of his debts, funeral expenses and testamentary expenses, and declares without effect the subsidiary legacy set out at page 3 of his holograph will dated January 26, 2014.