This blog has been written by Frédéric Barriault, counsel, at Fasken LLP
The decisions in Bigras (Succession de Lefrançois) c. Faille‑Lefrançois (2025 QCCA 481) and Contant c. Rivet (2025 QCCA 831) provide important clarification of Québec law regarding access to testamentary documents and the lifting of the notary’s professional secrecy in the context of challenges to the validity of a will. Both judgments build on prior jurisprudence, particularly Tanzer and Succession de Plante, and establish a coherent framework governing preliminary motions for disclosure in disputes involving alleged incapacity or undue influence.
1. Fundamental Tension: Protection of the Deceased vs. Notary’s Professional Secrecy
A central principle emerging from both decisions is the need to strike a balance between two competing interests:
(1) protecting the true intentions of the deceased; and
(2) preserving the confidentiality of notarial acts, which benefits from strong protection under Québec law.
The Court of Appeal reiterates that notarial professional secrecy is a fundamental right with quasi-constitutional status, and should only be lifted where strictly necessary in the interests of justice. However, this protection cannot serve as a shield when there is a credible basis to question whether a will reflects the free and informed intentions of the testator. The judge’s role is thus one of equilibrium: ensuring both the integrity of testamentary freedom and the proper administration of justice.
2. Distinction Between the Last Will and Prior Wills
A key clarification concerns the legal status of testamentary documents after death. The Court confirms that the last will loses its confidential character upon the testator’s death, provided it is relevant to a dispute. Consequently, a party with a legitimate interest—particularly a legatee or an heir —may generally obtain a copy without having to satisfy a stringent evidentiary burden.
By contrast, prior or revoked wills remain protected by professional secrecy. Access to these documents requires judicial authorization and is subject to a more structured analytical framework, reflecting the fact that the testator chose to revoke them and may have intended them to remain confidential.
3. Applicable Analytical Framework for Disclosure Requests
The Court consolidates the applicable framework for determining whether disclosure should be ordered. This framework applies both to (i) disclosure of prior wills and certificates of will searches, and (ii) the examination or partial release from professional secrecy of a notary.
Three core requirements emerge:
(1) Legal Interest:
The applicant must demonstrate a sufficient legal interest in challenging the will. This requirement is generally easily met, and in particular is presumed for heirs or children of the deceased.
(2) Existence of a “Serious Doubt”:
The applicant must raise a serious doubt as to the validity of the will, based on allegations such as incapacity or captation. This is the central threshold.
(3) Necessity and Proportionality:
Any disclosure order must be limited to what is necessary for resolving the dispute.
Importantly, the Court emphasizes that this is a preliminary stage. The purpose is not to determine the merits of the case, but rather to decide whether the applicant should be allowed access to information needed to properly litigate the claim.
4. Nature and Intensity of the Evidentiary Burden
One of the most significant contributions of these decisions lies in clarifying the nature of the evidentiary burden imposed on the applicant.
The Court firmly rejects the notion that the applicant must establish the alleged incapacity or undue influence on a balance of probabilities at the disclosure stage. Instead, it suffices to demonstrate the existence of a serious doubt based on the record as a whole, which may include:
- Detailed factual allegations in pleadings;
- Affidavits or documentary evidence;
- Circumstantial elements suggesting vulnerability or influence.
This standard is deliberately flexible and contextual. As emphasized in both decisions, the judge must adopt a global and pragmatic approach, assessing whether the claim is sufficiently grounded to justify further investigation.
5. Rejection of an Unduly Stringent Approach
In Contant c. Rivet, the Court of Appeal criticizes the lower court for imposing an excessively onerous burden on the applicant, effectively requiring proof on the merits. The Court reiterates that such an approach is erroneous because it collapses the distinction between preliminary disclosure and the substantive adjudication of the dispute.
The Court also rejects the characterization of a well-particularized claim as a “fishing expedition” where the allegations are specific and supported by contextual facts. This reinforces a more permissive approach to disclosure when concerns about the validity of a will are legitimately raised.
6. Relevance of Vulnerability and Contextual Factors
Both decisions highlight the importance of contextual indicators of vulnerability, such as:
- Physical or psychological deterioration;
- Dependence on a potential beneficiary;
- Sudden changes in testamentary dispositions;
- Social isolation or influence over communications.
While these factors do not establish captation or incapacity in themselves, they may suffice to raise a serious doubt that justifies disclosure.
7. Scope of Disclosure Orders
Finally, the Court clarifies that disclosure may extend beyond testamentary documents to include related evidence relevant to capacity, such as medical records within a defined period. This underscores the functional approach adopted by the courts: access is granted not for its own sake, but to enable a meaningful inquiry into the validity of the will.
Conclusion
Together, these decisions articulate a coherent and balanced framework governing access to testamentary information in Québec. They confirm that while notarial professional secrecy remains a fundamental principle, it must yield when a party raises a sufficiently serious and substantiated doubt regarding the validity of a will. The threshold at the disclosure stage is deliberately lower than that required at trial, ensuring that potentially meritorious challenges are not stifled prematurely.
