Gingras v. Gingras

Gingras v. Gingras

Article 851 requires the testator's acknowledgment of his signature in the simultaneous presence of at least two competent witnesses who must then sign; non-compliance with this essential formality is fatal under Article 855 and renders the will null, so the appeal is allowed.

Citation
[1948] SCR 339
Parties
Appellant Plaintiff: Dame Antoinette Gingras; Respondent Defendant: Henri Gingras; Mis En Cause: Lorenzo Gingras et al; Tierce Saisie: The Royal Bank of Canada
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
25 June 1948
Procedural Posture
Appeal Wills/estates (civil) / Supreme Court of Canada on Appeal From Court of King's Bench, Quebec (appeal Side)
Outcome
Appeal allowed; will declared null for failure to comply with statutory witness and acknowledgment formalities; costs awarded as per reasons with apportioned printing/stenography costs.
Legal Topics
Testamentary Formalities, Acknowledgment of Signature, Witness Formalities, Nullity of Wills
Source Language
English
Estates Wills Succession Law Civil Procedure Testamentary Formalities Acknowledgment of Signature Witness Formalities Nullity of Wills

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Parties

Dame Antoinette Gingras

Appellant Plaintiff

Henri Gingras

Respondent Defendant

Lorenzo Gingras et al

Mis En Cause

The Royal Bank of Canada

Tierce Saisie

Procedural Posture

Appeal Wills/estates (civil) / Supreme Court of Canada on Appeal From Court of King's Bench, Quebec (appeal Side)

Legal Issues

  1. 1 Whether Article 851 C.C. requires the testator to acknowledge his signature in the presence of at least two competent witnesses together before those witnesses sign
  2. 2 Whether failure to have simultaneous acknowledgment and witness signatures renders the will null under Article 855 C.C.
  3. 3 Whether courts may disregard statutory formalities in absence of fraud

Ratio Decidendi

Article 851 requires the testator's acknowledgment of his signature in the simultaneous presence of at least two competent witnesses who must then sign; non-compliance with this essential formality is fatal under Article 855 and renders the will null, so the appeal is allowed.

Court Disposition

Appeal allowed; will declared null for failure to comply with statutory witness and acknowledgment formalities; costs awarded as per reasons with apportioned printing/stenography costs.

Orders

  • Appeal allowed
  • Will declared null and void for non-compliance with Articles 851 and 855 C.C.