This blog has been written by Frédéric Barriault, Counsel, at Fasken LLP
The decisions in De Forte c. Kassardjian, 2025 QCCS 91, and Succession de Tremblay c. Abran, 2025 QCCS 2626, offer a coherent and complementary articulation of Québec law governing substitutions de residuo, particularly regarding (1) their legal validity, and (2) the limits imposed by public order rules. Together, these judgments reaffirm the primacy of the testator’s intent while clarifying the protective framework afforded to substitutes (the “appelés”).
- Qualification and Validity of the Substitution de residuo
Both decisions emphasize that a substitution arises where property is transferred to a first recipient (the “institute” / the “grevé”) with the obligation to transmit what remains to a second recipient (the “substitute” / the “appelé”). The courts reiterate that no formal terminology is required: it is sufficient that the testamentary wording reflects an intention to grant property subject to a future obligation to return the residue.
In De Forte, the Court held that a clause granting full ownership to a spouse “on condition that, upon her death, she leaves what remains” to designated beneficiaries clearly constitutes a substitution de residuo. The absence of ambiguity in the wording led the Court to apply the literal meaning without resorting to interpretative rules.
Similarly, in Abran, the Court confirmed that a testament leaving property to a spouse subject to returning the residue to children upon her death constitutes a valid substitution. In both cases, the courts stress that such dispositions are expressly authorized under article 1218 of the Civil Code of Québec (“CCQ”) and form part of the legislatively recognized succession planning framework.
Importantly, De Forte rejects the argument that such clauses violate the freedom to test under articles 703 and 706 CCQ. The Court clarifies that these general principles must be read harmoniously with article 1218, which explicitly permits substitutions. A testator may therefore validly confer ownership subject to limitations inherent in a substitution, and the grevé cannot claim broader rights than those granted.
- Rights and Obligations of the Grevé
A central theme in both judgments is the balance between flexibility for the grevé and protection for the appelés. In a substitution de residuo, the grevé enjoys significant autonomy: they may use, alienate, or transform the assets, provided that the value is preserved and the residue is ultimately transmitted.
However, this autonomy is not absolute. The grevé must act in good faith, cannot dispose of assets gratuitously unless expressly authorized, and must ensure that the economic value of the substituted property is preserved for the appelés. The grevé’s ownership is therefore described as resoluble and temporary.
Crucially, both decisions highlight the obligations owed to appelés. In De Forte, the Court orders the grevé to produce an initial inventory and annual reports detailing changes to the substituted patrimony, supported by relevant documentation. These obligations serve a transparency function and enable appelés to monitor the evolution of the assets over time.
- Public Order Limits: Article 1231 CCQ
While testators enjoy significant freedom, Abran establishes a critical limit: certain obligations imposed on the grevé are of public order and cannot be waived. The Court confirms that article 1231 CCQ, which requires periodic disclosure of changes to the substituted property, is a rule of public order designed to protect appelés.
As a result, testamentary clauses exempting the grevé from reporting obligations are null. However, the Court draws an important distinction between partial nullity and total invalidity. Rather than annulling the entire substitution, only the offending clauses are struck down. This approach reflects a broader principle of Québec succession law: courts must preserve testamentary dispositions to the greatest extent possible, consistent with the testator’s intent.
This reasoning aligns with longstanding interpretative principles favoring the effectiveness of wills. The Court explicitly rejects an approach that would invalidate an entire testamentary scheme due to limited non-compliant provisions, as this would undermine the testator’s primary objectives.
- Primacy of the Testator’s Intention
Both decisions strongly reaffirm that the testator’s intention is the dominant interpretative principle. Courts must seek to give effect to that intention, even where drafting imperfections exist.
In practice, this means that:
- clear wording is applied as written;
- ambiguities are resolved in favour of validity; .
- invalid clauses are severed rather than allowing the entire disposition to fail.
This principle underpins the courts’ refusal in both cases to invalidate substitution clauses in their entirety.
Conclusion
Taken together, these decisions confirm the robustness of the substitution de residuo as a legitimate succession planning tool in Québec law. They illustrate a careful balance between testamentary freedom and the protection of beneficiaries, achieved through the enforcement of public order rules and transparency obligations. At the same time, they underscore the judiciary’s commitment to preserving the testator’s intent.
