Stoneham and Tewkesbury v. Ouellet

Stoneham and Tewkesbury v. Ouellet
Collection
Supreme Court Judgments
Date
1979-05-01
Report
[1979] 2 SCR 172
Judges
Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; Pratte, Yves
On appeal from
Quebec
Subjects
Appeal
Estates
Decision Content
SUPREME COURT OF CANADA
Stoneham and Tewkesbury v. Ouellet, [1979] 2 S.C.R. 172
Date: 1979-05-01
Municipal Corporation of United District of Stoneham and Tewkesbury (Plaintiff) Appellant;
and
Roch Ouellet (Defendant) Respondent.
1978: February 10; 1979: May I.
Present: Pigeon, Dickson, Beetz, Estey and Pratte JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Wills — Vacating — Undue influence — Presump­tions — Civil Code, arts. 993, 2202.
Appeal — Evidence — Assessing the credibility of witnesses — Power of appellate court to intervene.
Two months before his death Sydney Wright made an authentic will by which he bequeated to appellant corpo­ration the principal asset in his estate, namely a large wooded piece of land, to be used as a public park , and to respondent the sum of $200. Twelve days before he died, while ill and hospitalized, he made a second authentic will by which he made respondent Ouellet his sole universal legatee. After making a lengthy analysis of the voluminous evidence the Superior Court judge concluded that the circumstantial evidence taken to­gether with the extreme weak condition of the testator constituted a body of evidence establishing that the second will did not represent the wishes of Sydney Wright, and that the action to vacate for undue influ­ence was well founded. Although the Court of Appeal found no error of law in the judgment of the trial judge, it did find five errors of fact which it characterized as obvious, and which it considered sufficient to reverse the judgment of the Superior Court. In addition to the questions of fact, this appeal also turns on the power of the Court of Appeal to intervene in a case in which the credibility of witnesses is of the first importance.
Held: The appeal should be allowed.
The errors which the Court of Appeal concluded were made by the trial judge were either not errors or were relatively unimportant. In the circumstances the Court of Appeal erred in completely retrying the case, because the errors which the trial judge was alleged to have made did not justify its intervention. What is more serious, however, the Court of Appeal retried the case without reference to the trial judge's findings as to respondent's credibility. Moreover, as respondent's tes­timony was rejected globaly by the trial judge, the Court of Appeal committed a further error in relying on certain parts of that testimony, for the reason that they were probable or corroborated by other witnesses. A review of the evidence in these circumstances is tainted by a major distortion, which vitiates the findings of the Court of Appeal that the undue influence was not clearly proven. In view of the nature of undue influence, as defined by legal commentators and the courts, in the case at bar the evidence of undue influence is to be inferred from the words, insinuations and actions of respondent as much as from the acts of the testator and the circumstances in which the disputed will was drawn up. To this must be added, by way of contrast, the circumstances in which the first will was prepared and the content of both wills, taking into account the person­ality, character and beliefs of the testator.
After reading and analysing all the evidence, it cannot be said that the trial judge manifestly erred in conclud­ing that undue influence had been proven by circum­stantial evidence, bearing in mind the fact that he did not believe respondent's deposition and, the preponder­ance of the evidence. Rather, it is the Court of Appeal which erred by substituting its assessment of the evi­dence for that of the trial judge.
So far as the presumptions of arts. 993 and 2202 C.C. are concerned, they are juris tantum and may be rebut­ted by contrary evidence, which depending on the cir­cumstances may be strong enough to not merely neutral­ize them but overturn them completely.
Finally, although the unfettered freedom to devise comes from English law, and there are analogies be­tween the concept of under influence in English law and undue influence (captation) in the civil law, this Court is very hesitant to use the English decisions and those from other provinces in a civil law matter such as this, and it is not in any way bound by its decision in Adams v. McBeath, (1896), 27 S.C.R. 13, a British Columbia case.
Mayrand v. Dussault (1907), 38 S.C.R. 460; Tou­chette v. Touchette, [1974] C.A. 575, aff. [1976] 1 S.C.R. vi; Fauteux v. Chartrain, [1959] C.S. 176; Adams v. McBeath (1896), 27 S.C.R. 13, referred to.
APPEAL from a judgment of the Court of Appeal of Quebec,[1] reversing a judgment of the Superior Court allowing an action to vacate a will. Appeal allowed. P. Delisle and Jacques Paquet for the appellant.
Jules Bernatchez, Q.C., and Francine Turgeon for the respondent.
The judgment of the Court was delivered by
BEETZ J.—This is an action to vacate a will for undue influence. In the Superior Court and the Court of Appeal, appellant also argued that the testator was insane, but in this Court it relin­quished this argument while continuing to maintain that the testator's illness and physical weak­ness made him more vulnerable to undue influence. Marquis A.C.J. of the Superior Court allowed the action and vacated the second will of Sydney Wright. The Court of Appeal reversed this judgment and dismissed the action. The appeal, with leave of this Court, is from this decision. As the Court of Appeal emphasized, the question is principally one of fact, but it also turns on the power of the Court of Appeal to intervene in a case in which the credibility of witnesses is of the first importance.
The judgment of the Superior Court has not been reported, and the decision of the Court of Appeal is only available in summary form: [1976] C.A. 436. In order to understand the unusual and complex circumstances from which the case arose, it is necessary to cite lengthy extracts from this decision and that judgment.
I—Chronology of the undisputed facts
The reasons for the unanimous decision of the Court of Appeal were written by Bernier J.A. He summarized as follows the undisputed facts of a voluminous case.
[TRANSLATION] By an earlier authentic will, recorded on June 23, 1972, Sydney Wright had bequeathed to respondent municipal corporation the principal asset in his estate, namely a large wooded piece of land, to be used as a public park.
The case at bar concerns primarily questions of fact; accordingly, in order to make sense of the many fine points of the evidence and to assess their weight, it is best to summarize chronologically the salient facts the accuracy of which is not in dispute. (a) The brothers Percy and Sydney Wright were both bachelors with no close relatives, and illiterate. They lived alone in seclusion, at their family property in Stoneham, in a house devoid of any modern conveni­ences. They lived for the most part off what they produced in a garden. This property included a large wooded piece of land, unexploited and jealously preserved in its natural state. Since they had been the victims of an armed robbery around 1965, a robbery which does not appear ever to have been cleared up, the Wrights kept a constant armed guard, day and night, at their house. From time to time the younger brother, Sydney, worked away from home for the Department of Highways. Apart from old age pension benefits (appar­ently received for them by one of their friends residing in Quebec City, Jack Thompson), their only other income came from two expropriations of rights of way for transmission lines and the rental of a parcel of land to Hydro-Quebec. They had a bank account at a branch of the Provincial Bank of Canada, in Quebec City.
(b) Roch Ouellet and his father Georges came to Stoneham in 1959 from St-Jacques in northwestern New Brunswick. Georges Ouellet operated a sawmill in Stoneham, and his son Roch did some trucking in addition to helping his father. From about 1960 on the Ouellets were regular visitors at the Wrights' home; the Wrights also visited the Ouellets from time to time. Roch Ouellet became the person whom the Wrights called on for transportation to Quebec City or elsewhere, and to perform a variety of services for a certain remuneration.
(c) On March 7, 1970 Percy Wright was admitted to the St-Francois d'Assise Hospital; he remained there for three days. The name of Roch Ouellet appeared on the admittal form as the person to be notified in the event of an emergency.
(d) On April 19, 1972 Percy Wright went to stay with Georges Ouellet; he was ill and Sydney Wright could no longer take care of him properly. He was charged $30.00 a week for room and board, and Sydney Wright went there to visit him.
(e) On May 3, 1972 Sydney Wright had Roch Ouel­let drive him to Quebec City to the office of the Hydro-Quebec notary, Stuart Wright (no relation), to see about the expropriation of a right of way for Hydro-Quebec transmission lines which he and his brother had failed to attend to since 1970; they had not responded to the notary's letters. Sydney Wright brought back the document which he and his brother were to sign to obtain the specified compensation of $2,100. (f) On May 30, 1972 Percy and Sydney Wright were admitted to the Enfant-Jésus Hospital.
(g) While he was in hospital, Percy Wright sum­moned Jack Dunn, the former secretary-treasurer of respondent corporation, and asked him to take certain steps on his behalf with Hydro-Quebec so as to obtain compensation due to them from an expropriation by Shawinigan Water and Power some ten years earlier, another matter which they had neglected to deal with. Percy Wright had initially asked Roch Ouellet to look after the matter and, on May 17, 1972, the latter had written a letter to this effect to Hydro-Quebec.
(h) On June 13, 1972 Roch Ouellet returned to the notary Wright the draft contract signed by Percy Wright (who, as he could not write, made his mark) and Sydney Wright. The notary Wright gave him a cheque for $2,100 from Hydro-Quebec made out to the Wright brothers.
(i) Percy Wright was released from the hospital that same day and returned to stay with Georges Ouellet. Sydney Wright remained in the hospital.
(j) On June 19, Percy Wright died at Georges Ouel­let's home, leaving no will. Sydney Wright became sole owner of their property. The funeral was looked after by Roch Ouellet, who told the people who had come to visit the Wrights in hospital (including Sydney McCune, Jack Dunn and Jack Thompson). The body did not lie in state and there was no funeral service, merely a religious ceremony at the cemetery. Roch Ouellet himself paid the necessary expenses, just as he had earlier seen to the payment of certain bills owed by the Wright brothers, such as property taxes.
(k) On June 20, 1972 Sydney McCune and Jack Dunn visited Sydney Wright in hospital. They suggested that he make a will and, since he had no close relatives, leave his land to respondent municipal corporation for a public park. Sydney Wright approved of the idea. McCune and Dunn asked Sydney Wright whether he had a notary looking after his affairs; when he said that he did not, they suggested the notary Wright, whom he had just been dealing with. They telephoned the latter from the hospital (but not from Sydney Wright's room), telling him of Sydney Wright's intention. The notary Wright went there the same day and received Sydney Wright's instructions. He drafted the will in his office and returned the following day with the notary Gilles Giroux. After being read, the will was signed. Sydney Wright only wanted to make a mark because of the trembling of his hand (apparently due to Parkinson's disease, which he had suffered from for several years), but as the notary insisted, he signed. (l) While he was in hospital, Sydney Wright underwent surgery for the first time, consisting in the removal of a tumor in his abdomen (neoplasia).
(m) When he left the hospital on July 14, 1972, Sydney Wright went to stay with Georges Ouellet.
(n) On July 27, 1972, Sydney Wright was readmit­ted to the hospital.
(o) On August 1, 1972, at Roch Ouellet's request, the notary Corriveau, accompanied by the notary Louise Barbeau, went to see Sydney Wright in hospital. He drafted on the spot the will which was vacated by the judgment a quo. Sydney Wright tried to sign it, and finally made his mark. Dr. Jacques Côté, the attending physician, prepared a certificate for the notary Cor­riveau stating that Sydney Wright was in full possession of his faculties at this time.
(p) On August 10 or 11, 1972, Sydney Wright underwent surgery a second time.
(q) On the evening of August 9 or 10 Adélard Roy, a lumber dealer who for several years had visited the Wright brothers hoping to buy cutting rights to their timber, having learned that Sydney Wright was in hos­pital, went to see him and once again asked him to sell. Sydney Wright told him he could not do so, as his land had been given to respondent municipal corporation to be made into a park as a memorial to his family.
(r) On August 13, 1972, Sydney Wright died in hospital at the age of 77. Roch Ouellet looked after the funeral; he told the undertaker that he had money from the estate to pay for it.
(s) In the period following the death of Sydney Wright, Roch Ouellet stored the most important furni­ture in the Wright's home at his own home. On August 24, 1972 the notary Corriveau's associate, the notary H.-Paul Martin, made an inventory of this furniture "which had been stored to preserve it from fire and theft".
(t) On January 4, 1973, respondent municipal corpo­ration brought the action to vacate the later will on the dual grounds of de facto incapacity (insanity) of the testator and absence of consent, on account of undue influence by Roch Ouellet and his family.
The disputed will reads as follows (the portion of the text reproduced in italics is handwritten; the remainder was typed in advance): IN THE YEAR NINETEEN HUNDRED AND SEVENTY TWO, on the first day of the month of August,
BEFORE MTRE BERNARD CORRIVEAU, Notary at Québec, in the Province of Québec, Canada, and MTRE Louise Barbeau, Notary at Québec, in the Province of Québec, Canada,
APPEARED:
MR. SYDNEY WRIGHT, farmer, residing at Stoneham, and now hospitalized at Hôpital de l'Enfant Jésus, in Québec,
Who made the following last Will and Testament:
I. I commend my soul to God;
2. I leave the arrangements for my funeral and burial to the discretion of my testamentory executor.
3. I hereby bequeath the universality of my property moveable and immoveable unto Mr. Roch Ouellet, residing at Stoneham, whom I hereby institute my sole universal legatee, and testamentary executor.
4. I hereby revoke all previous wills or codicils.
Whereof Act at Québec under minute number eleven thousand three hundred and eighty-six (11.386) of the minutes of notary Bernard Corriveau.
AFTER DUE READING by Notary Bernard Cor­riveau to the testator in the presence of Louise Barbeau, the testator declared in the presence of the said Notaries his inability to sign his name owing to his sickness, but put his cross, and the Notaries thereupon each signed in the presence of the other and of the testator.
X
Louise Barbeau, notary
Bernard CorriveaU, notary.
The text of the first will, which was typed in its entirety, except of course for the signatures, reads as follows:
ON THIS TWENTY-THIRD DAY OF THE MONTH OF JUNE IN THE YEAR ONE THOUSAND NINE HUNDRED SEVENTY-TWO.
BEFORE US STUART WRIGHT and GILLES GIROUX, the undersigned Notaries for the Province of Quebec, in Canada, practising at the City of Quebec in the said Province, personally came and appeared:
WILLIAM SYDNEY JOHN WRIGHT of the Vil­lage of Stoneham, Province of Quebec, Farmer. Who declared the following to be his last Will and Testament.
FIRST. I declare that I have never been married.
SECOND. I appoint my friend Jack Dunn of the Vil­lage of Stoneham, Municipal Secretary-Treasurer, as the sole Executor of this my Will and extend his powers as such beyond the year and day limited by law until all the dispositions hereof have been fully carried out and accomplished.
Should my said Executor die, resign, become inca­pable or refuse to act, I appoint in his place and stead my friend Sydney McCune also of Stoneham as the sole Executor of this Will with the same powers as it origi­nally named as such hereunder.
THIRD. I direct that all my just debts, succession duties and taxes arising out of my death, testamentary and burial expenses including the costs in connection with my cemetery lot and headstone and the endowment thereof should this be necessary, be paid out of the capital of my estate.
FOURTH. I give and bequeath the whole of my real estate of every kind consisting of a property bordering on the Talbot Highway and the mountain commonly known as "Wright Mountain" to the Municipality of the United Townships of Stoneham and Tewkesbury or its successor on condition that the municipality agrees to maintain the property as a park to be known as "Wright Park" as a memorial to our family, namely my grand-parents, Thomas Wright and his wife Matthew Wright, my parents, John Wright and his wife Margaret Cowie Tait Wright, my late brother, Percival Wright, and myself. Furthermore the Municipality must agree to keep the property as long as possible into the future in its natural state with no cutting of trees to be allowed except for those broken or diseased and those which must be removed for reasonable cause, and to provide for access to the park by the public.
FIFTH. I bequeath to my friend Roch Ouellet of Stoneham the sum of Two hundred dollars ($200.00).
SIXTH. I bequeath the residue of my estate one half to Christ Church (Anglican) of Stoneham and one half to St. Andrew's Church (Presbyterian) of Quebec.
SEVENTH. I exempt my Executor from the obligation of making a notarial inventory of my estate and direct that the declaration which will be signed for succession duty purposes be accepted in lieu thereof by all persons interested hereunder.
EIGHTH. In addition to all powers conferred by law, I give my Executor, without the intervention or consent of my beneficiaries being required, the right and power to:—
(a) sell, lease, hypothecate, pledge, exchange or otherwise dispose of all property, both moveable and immoveable of my estate it being understood that he may only dispose of my immoveable property should the Municipality not accept the bequest thereof;
(b) borrow money for my estate;
(c) compromise claims in favour of or against my estate;
(d) release any property affected by hypothec or mortgage in whole or in part for such consideration or without consideration as he may think proper;
(e) make any partition of my estate without any process of law and settle any share in my estate either by paying the same in cash or by allotting assets of my estate as he in his sole discretion may deem fair and sufficient.
NINTH. I revoke and annul all other Wills and Codicils I may heretofore have made declaring the present to be my only true Last Will and Testament.
THUS DONE AND PASSED at the said City of Quebec, on the day, month and year first above written, under the number Five thousand five hundred fifty-five — of the minutes of the said Stuart Wright.
AND the present Last Will having been read to the said Testator by the said Stuart Wright, in the presence of his said Colleague, the said Testator and the said Notaries thereupon each signed the same in the presence of both the others.
SYDNEY WRIGHT
GILLES GIROUX, notary STUART WRIGHT, notary
II—The Superior Court judgment
After analysing the evidence at length in the first part of his judgment, the trial judge summa­rized his reasons as follows (I have numbered the grounds):
[TRANSLATION] REASONS:
(1) WHEREAS the following reasons indicate that the testator Sydney Wright did not execute the disputed will with full knowledge of the facts, that he was in an extremely weak condition, that he was no longer able to sign his name as he had done earlier, that he was kept constantly under the influence of defendant and his relatives, and finally that from a meticulous analysis of the evidence it is apparent that the said testator was the subject of undue influence by the said defendant;
(2) WHEREAS the late Sydney Wright and his older brother lived together in poverty, isolated from the Francophone population of Stoneham, with no modern conveniences such as running water and washroom, as well as electric appliances and so on, and whereas they lived off the produce of a cottage garden and certain income paid to them by cheque, and many such cheques were never cashed;
(3) WHEREAS they had a certain animosity towards Francophones, and their few friends could be counted on the fingers of one hand, including the Mayor, Sydney McCune, and especially the treasurer at that time, Jack Dunn, until the time that defendant and his family came to live in Stoneham, and defendant especially was constantly in the company of the Wright brothers, driving them to town from time to time and performing trivial services for them, for which he was paid;
(4) WHEREAS when the elder, Percy Wright, fell ill, he died at the home of the father of defendant, who was looking after the affairs of both brothers; and whereas he took him to the Mount Hermon cemetery, and had him interred without exhibiting the mortal remains first and with no last rites;
(5) WHEREAS at that time the late Percy Wright, who was the head of the family, had made no will; the testator Sydney Wright, who was then very ill, was incensed when he learned of the casual burial of his brother; he called Sydney McCune and Jack Dunn to his bedside, and told them that he wished to dispose of his property, asking them to seek the services of his notary Stuart Wright, who was no relation to him but who was responsible for handling certain expropriation matters; his friends McCune and Jack Dunn, who had no personal interest, suggested that Sydney Wright dispose of his tract of forest land of approximately 600 acres by giving it to plaintiff for the creation of a park in memory of their family, and this appealed greatly to the testator, who then requested Mr. McCune to contact the notary Wright by telephone and ask him to meet with the ailing Sydney Wright; in fact, the said notary did visit Sydney Wright, who gave him all details concern­ing the disposal of his property; these details were meticulously noted by the officiating notary, who prepared the testamentary deed in his office and returned the following morning to submit it to Sydney Wright; the latter, though he was ill, was aware of what he was doing, and decided to give the wooded tract to the municipality of Stoneham for a park, and the residue to the two Anglican and Presbyterian churches, which were of his Protestant faith, with in addition a bequest of $200.00 to Roch Ouellet;
(6) WHEREAS it should be emphasized that the testator did not wish to make a gift to defendant Roch Ouellet, stating that he had been very well paid and he owed him nothing, but the notary felt he should suggest that a gift be made nevertheless to defendant, with whom he had travelled on certain occasions, and proposed the sum of $1,000.00 which was rejected outright by the testator, and the latter then agreed to bequeath the sum of $200.00 to Roch Ouellet;
(7) WHEREAS the testator was outraged by the unworthy fashion in which defendant had buried his older brother, for whom he had a profound affection, but he nevertheless agreed to make this small bequest to defendant;
(8) WHEREAS Mayor McCune told the municipal councillors of Sydney Wright's intention to deed his wooded tract for the establishment of a park, and the corporation decided to accept this bequest in the public interest;
(9) WHEREAS defendant had learned that such a will had been made, and stated that he would obtain another, and made repeated approaches to the testator; he prepared a document in the nature of a general power of attorney to administer the property of the ailing man; the latter did not want to sign and called the nurse McKinnon, who was in charge of the area; she saw the telephone number of Jack Dunn on the record, and contacted him, so that the testator did not agree to sign the document and of course the area nurse also refused to sign as a witness;
(10) WHEREAS shortly before the trial began, defendant again went to the nurse with another copy of the document, which he claimed to have mislaid, to obtain the nurse's signature on the pretext that it was in order to obtain her address, although he had been able to contact her at the hospital and knew how he could issue her with a summons to appear in court;
(11) WHEREAS Percy Wright spoke no French and defendant did not understand English, and although Sydney Wright preferred to speak English he could make himself understood in French, it is unlikely that defendant understood certain statements allegedly made by Percy Wright that he intended to deed his land to defendant; (12) WHEREAS it was established that the Wright brothers definitely intended to keep their forest land in its natural state, and this intention was also indicated when the contractor, Adélard Roy, went to see them to buy cutting rights to the timber, and he even went to see Sydney Wright on August 13, 1973, after the will at issue was prepared, and the latter told him that he could do nothing because the whole property had been deeded to the municipality;
(13) WHEREAS at this time the testator, Sydney Wright, was very weak, and died a few days later; and he would certainly have been able to state that he had given his property to defendant if he had known the scope and significance of the deed which he was made to sign on August 1, 1972;
(14) WHEREAS defendant, knowing that Stuart Wright was the notary for the Wright brothers, could easily have discussed with the said notary the possibility of having a new will prepared; but he said nothing to him about it, and requested the services of his own notary with whom he had been dealing for several years, to obtain a signature on the disputed will which had been prepared in advance in the latter's office, apart from a space which had been left blank;
(15) WHEREAS it is impossible for the notary officiating on this latter will to have typed the following words:
The testator declared in the presence of the said Notaries his inability to sign his name,
if the defendant had not given him this information, because he had neither seen nor known Sydney Wright, and whereas at the bottom of the will there is an X with the start of a signature, which was interrupted, while in the earlier will filed as Exhibit P-2, a photocopy of which is filed as P-8, it can be seen that Sydney Wright signed his name with some effort but so that it could be identified; while his signature on Exhibit P-6, the deed concluded with Shawinigan Water and Power Company in 1948—his signature was clearly legible, which indi­cates that during this period of time his physical condi­tion had considerably deteriorated;
(16) WHEREAS plaintiff can plead the confessions made by defendant but his assertions in opposition to the action are nullified by contradictions, gratuitous and erroneous statements, and an unjustified animosity towards Mayor McCune and even Jack Dunn, and whereas he made a far-fetched and incredible statement when he said that the Wrights described them as "two-footed pigs"; (17) WHEREAS there is no need to dwell further on the point, but from reading the three depositions made by defendant it is clear that the latter instigated the preparation of the last will, that his persistent ap­proaches to the invalid constituted influence of such a nature that the late Sydney Wright did not even men­tion the name of the Protestant churches which he had indicated on his first will, and was only able to mumble the name of Roch Ouellet, with the result that the officiating notary was the victim of defendant's mano­euvring, as the latter told him positively what the invalid wanted to do, remained in the room while the typed will with a blank space was completed in the presence of the beneficiary, and was present at the signature; and this from ameticulous analysis of the evidence clearly indi­cates that Sydney Wright had transferred his property to the municipality and to the Protestant churches, with a gift of $200.00 to defendant as suggested by the notary Wright, that in addition he had told the contrac­tor Adélard Roy that he had conveyed his property to the municipality, and that the general medical certifi­cate was even obtained indicating that he was of sound mind;
(18) WHEREAS the obtaining of this certificate from the officiating physician was clearly an effort to take extraordinary precautions, because the invalid gave the impression of being very feeble, his physical strength was almost exhausted, his weight was down to 100 pounds, he was trembling and was unable to sign, he had given no details on all the earlier gifts in the other will which was mentioned, and the physician who issued the certificate stated that he had not spoken to his patient, and that the physical condition of his illness was ascribed to something other than what it was;
(19) WHEREAS the claim of defendant that the testator felt animosity and hatred towards the Mayor and secretary of the municipality is incredible, as they were his close friends whom he designated as such in the will filed as P-2;
(20) WHEREAS it is impossible to accept the vari­ous versions of defendant, who maintained that the Wright brothers intended to give him everything, except for a small area of 400 square feet, that they wanted him to build a house alongside their own, and that they intended to give away all their property, whereas Sydney never intended to sign any document whatever authoriz­ing administration of his property;
(21) WHEREAS, furthermore, the said defendant cashed a cheque for $2,100.00, which was not filed and which was made out to the Wright brothers; and where—as there was no evidence that the signature had been identified and that the witnesses to the signature were present when the Wright brothers made their mark on this cheque;
(22) WHEREAS, furthermore, defendant wrongfully retained the sum of $800.00, which he later failed to return to the notary responsible for administering the estate until the time of the trial, and whereas he had even converted funds to his own use, because he stated that he had the money to repay them;
(23) WHEREAS defendant's contentions that the Wright brothers intended to give everything to him are in blatant contradiction to the categorical evidence that they intended to keep the woodland in its natural state;
(24) WHEREAS it seems pointless to list all the aspects of the depositions of defendant and all the details contained in the evidence to indicate that Sydney Wright made a will, filed as Exhibit P-2, after express­ing his intentions in detail to the notary Stuart Wright; that the latter scrupulously recorded the intentions of the testator, who then signed with full knowledge of the facts, and who subsequently, even after the will which is Exhibit P-1, stated that he had given or transferred his property to the municipality, and whereas he refused to sell cutting rights to a disinterested witness because the forest belonged at that time to the municipality, and this was only a few days after the will which was obtained by undue influence;
(25) WHEREAS defendant admitted that he deducted amounts of $10.00 from the sum of $2,100.00 for visiting Sydney Wright in hospital, although he was doing so with the obvious intent of getting him to sign a will;
(26) WHEREAS the circumstantial evidence taken together with the extremely weak condition of the testator constitute a body of evidence establishing that the said will does not represent the wishes of Sydney Wright;
(27) WHEREAS the action is well founded;
III—Errors found by the Court of Appeal in the judgment of the Superior Court
The Court of Appeal found no error of law in the judgment of the trial judge, but it did find five errors of fact which it characterized as obvious.
1. The first error was contained in the first part of the Superior Court judgment:
[TRANSLATION] It was Jack Dunn whom he [Sydney Wright] contacted when defendant [Roch Ouellet] wanted him to sign a general power of attorney in the presence of nurse McKinnon.
The Court of Appeal indicated the nature of the error:
[TRANSLATION] Sydney Wright did not ask nurse McKinnon to contact Jack Dunn on this occasion: nurse McKinnon did so on her own initiative, unknown to Sydney Wright.
This incident occurred during Sydney Wright's first stay in hospital (May 30, 1972), after Percy Wright's death. Roch Ouellet, whom she did not know, asked her to act as a witness to the signature of Sydney Wright on a document authorizing Roch Ouellet to deal with Sydney Wright's property, which he was in fact already doing. The post-mistress had also asked Roch Ouellet to obtain authorization to collect the mail. On the other hand, there is no suggestion in the evidence that Sydney Wright was unwilling to sign this general power of attorney. As a matter of caution nurse McKinnon did not want to act as a witness before checking with the person who, according to the records, was responsible for the patient, whether it was the right thing to do. In the records she found the name, address and telephone number of Jack Dunn; she concluded the latter was the person responsible, and telephoned him. Dunn was absent, and his wife asked nurse McKinnon to tell Sydney Wright not to sign before her husband had seen him. She delivered the message, and that is how the document was never signed.
The testimony of nurse McKinnon corroborated that of Roch Ouellet on this point. It was also corroborated by Jack Dunn, who stated that when he saw Sydney Wright on the matter the latter told him that the purpose of the document was to appoint Roch Ouellet administrator of his property.
It is true that nurse McKinnon contacted Jack Dunn on her own initiative when respondent asked her to act as a witness, but I am not convinced that the trial judge really erred on this point, since a little earlier he wrote:
[TRANSLATION] ERNESTINE McKINNON, the nurse in charge, knew Sydney Wright at the end of June and in early July. At some point Roch Ouellet gave her a typed document which he wanted the testator to sign. She immediately called Jack Dunn, whose telephone number was in the records, and told him about the matter, and Dunn told her "Tell him not to sign anything". This document contained, in essence, the follow­ing sentence: "I agree to Roch Ouellet being responsible for my property at Stoneham". When she returned, she told Sydney Wright of Jack Dunn's reply. Ouellet was not pleased, but Sydney Wright did not sign.
Similarly, in his ninth ground, cited above, he stated:
[TRANSLATION] WHEREAS defendant ... prepared a document in the nature of a general power of attorney to administer the property of the ailing man; the latter did not want to sign and called the nurse McKinnon, who was in charge of the area; she saw the telephone number of Jack Dunn on the record, and contacted him, so that the testator did not agree to sign the document .. .
The error, if any, is a minor one, and assuredly did not influence the trial judge's findings. Of more significance is the fact that, after receiving the Dunns' message, Sydney Wright did not sign the power of attorney. Also more significant is the actual testimony of nurse McKinnon, from which I quote some extracts, with emphasis on certain passages:
[TRANSLATION] A. Well, I was making the rounds of the patients and came into the room, and Mr. Ouellet was there with a typed document stating, as he indicated, "I agree to Roch Ouellet being responsible" — something of that kind — "for my present and future property at Stoneham". Then he asked me to sign as a witness, and I said I would not sign, that it had nothing to do with me, and just then I thought, I said: "I think Mr. Wright has another will". Then I called the persons whose names I had in the records; I left the room, saying I would call Mr. McCune. When I got there, however, it was Mr. Dunn's name, so I called Mr. Dunn. Mrs. Dunn answered, and I told her there was someone in the room who wanted Mr. Sydney Wright to sign a document. Mrs. Dunn said, "Tell Mr. Wright not to sign anything, that he will come and see him this evening". Mr. Ouellet asked me for my name and address, but I refused to give them.
…
Q. Now, when you returned to the room, did you repeat to Mr. Wright what Mrs. Dunn had told you? A. Yes.
Q. In front of Mr. Ouellet?
A. Yes.
Q. You told Mr. Wright that, that Mrs. Dunn was telling him not to sign the document?
A. Yes, that her husband would come that evening
Q. What was the reaction of Mr. Ouellet or Mr. Wright at that point, how did they react?
A. Well, Mr. Ouellet did not seem very pleased; but Mr. Wright decided not to sign anything at that time.
Q. Can you tell the Court whether Mr. Wright wanted to sign that document? You are under oath!
A. Yes ...
Q. Did he want to sign it? Tell us!
A... . I can tell you that Mr. Wright seemed like all old people who are being somewhat pressed to sign documents, he appeared to be saying: "Well, Roch Ouellet looked after me, should I give it to him or shouldn't I?" He really seemed to be upset, you know.
Q. But he didn't object to signing it, he offered no resistance?
A. Well, he offered no resistance ... like I said, I can't tell you if he wanted to sign, I am under oath, I know, but I can't tell you if he wanted to sign.
Q. And did you take the initiative in saying "He will not sign the document", the document the contents of which you have described namely "I authorize Roch Ouellet to look after my present and future property"?
A. No, I didn't make the decision to tell him "Don't sign"; what I said was "I won't sign".
Q. As a witness?
A. As a witness. Well, then, I went to see if he had really signed, because, you know, old people like that, people often come and pressure them, and then they sign under influence.
2. The Court of Appeal noted a second error: [TRANSLATION] Why these daily visits to the hos­pital, these arrangements to get his own notary to draft a will which was drafted in advance .. .
The will in fact was not prepared in advance. The notary Corriveau prepared it by hand in the hospital, on the spot, immediately after Sydney Wright told him of his wishes. The notary Corriveau stated that he knew nothing about it until Sydney Wright told him what the content of the will was to be. The only parts prepared in advance were the usual formulas of the introduction and the conclusion, which were typewritten on the will.
It is a fact that the disposing provisions of the disputed will were drafted by hand by the notary Corriveau in the testator's room. Here again, however, I do not believe that the trial judge was really mistaken. In the introductory part of his judgment he wrote: [TRANSLATION] "the mention of defendant as universal legatee was written into the stand­ard formulas to complete the document which was prepared in advance". In grounds 14 and 17 he wrote:
[TRANSLATION] ... to obtain a signature on the disput­ed will which had been prepared in advance in the latter's office, apart from a space which had been left blank;
... remained in the room while the typed will with a blank space was completed in the presence of the beneficiary, and was present at the signature. (My emphasis.)
What made the trial judge say that the will had been written in advance was two highly suspicious circum