ARTICLE 831 C.C.:
THE PROBLEM OF AMENDMENT
Gertrude Wasserman*
In this year of ?Our Lord one thousand nine hundred and fifty-five, animated
discussion centers around the problem of whether article 831 of the Civil Code
should be amended in order to provide for some type of reserve for the wife
and children of a testator, any stipulation to the contrary in the will notwith-
standing.
Impetus has been added to the discussion by a judgment rendered on the
25th of June, 1954, by the Court of Appeal, in the case of Crete v. Fortin,’
a decision which reflects an increasing tendency on the part of courts in this
province to interpret article 831 C.C. in terms of a freedom of willing that is
completely without restriction –
an interpretation, however, on which judicial
opinion is not unanimous and in connection with which there are serious
grounds for reflection and even disagreement with the prevailing tendency.
These grounds are to be covered by the writer before consideration of the main
problem, the advisability of amending article 831 C.C. and the manner of its
amendment, attention being drawn on this point to an article by Me. Turgeon
(to be commented on later).-2
Crete v. Fortin turned fundamentally on the question whether a will in
which the testator had disposed of his entire estate in favour of a woman
alleged to have been his concubine, disinheriting the wife and children, con-
travened public order and good morals.
Readers will, of course, recall that article 831 of the Civil Code, after
setting out that every person of full age and sound intellect, capable of
alienating property, can dispose of it by will in favour of any person capable
of acquiring, concludes as follows:
.
” .
. saving the prohibitions, restrictions, and causes of nullity mentioned in this
code, and all dispositions and conditions contrary to public order or good morals.”
Appelants, the daughters of Ephrem Crete, had asked for the annulation
of their father’s will, which, disinheriting the wife and children (as previously
stated), had named as universal legatee the woman with whom he was
alleged to have lived in concubinage. The daughters contended that the will
was immoral, contrary to public order, and constituted a nullity. Allegations
had also been made that the will had been passed as the result of undue in-
fluence exercised by the legatee, Defendant in the case. Defendant made a
total inscription in law, and, subsidiarily, a partial inscription, in respect of
the paragraphs alleging the adulterous relationship between testator and
legatee, contending that the allegations in question did not give rise to the
*Of the Montreal Bar.
1[1954] Q.B. 585.
2(1955), 15 R. du B. 204.
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conclusion prayed for, viz., the nullity of the will. The partial inscription in
law was maintained and the allegations alleging an adulterous relationship
between testator and legatee were ordered struck from the record. From this
interlocutory judgment an appeal was taken, which was dismissed. In the view
of Judge Pratte, speaking for the Court of Appeal:
“Suivant une jurisprudence maintenant bien 6tablie, le legs entre concubins n’est point
d~fendue. (King v. Tunstall (P.C.) 20 L.C.J. 49; Russell v. Lefranpois, (C.B.R.)
2 D.C.A. 245, A la page 264; 8 S.C.R. 335, at pp. 365, in fine, et 366; Archambault v.
Guerin [1948] B.R. 408).”3
It is interesting to note that the decision does not state in outright fashion
that such a bequest is moral; it simply states that a well established juris-
prudence has held it not to be prohibited. The question that follows is this:
whether, in the light of the restrictions that hedge in the common law
doctrine of stare decisis, the three decisions cited by Judge Pratte constitute
“une jurisprudence bien 6tablie”.
To begin with, according to the doctrine of stare decisis, 4 a careful dis-
tinction must be made between ratio decidendi and obiter dictum, recalling
that it is the ratio decidendi which constitutes the legal principle that may be
binding upon other cases ;4a secondly, it is now accepted that what serves as
authority or precedent is not merely the principle of law enunciated but the
material facts of the case in so far as they were necessary to the decision.5
Keeping in mind these qualifications of the doctrine, what does one find?
That neither from the point of view of legal principle nor of material facts is
King v. Tunstall6 applicable to Crete v. Fortin.7 The holding in King v.
Tunstall was this:
“That the conjoint operation of the Imperial Act (14 Geo. 3, c.83) and of the Can-
adian Act (41 Geo. 3 c.4) is to abrogate the old law which prohibited gifts by will
to adulterine bastards.”8
As was stated by Judge Surveyer, commenting on this case, criticizing at
the same time its application to others where the facts were different:
“II n’y a rien d’immoral A constituer lgataire universel son enfant adultrin: au
contraire, c’est un acte de reparation. Autre chose est de donner ce titre A une con-
cubine en recompense d’un nefarium coitum.”9
In King v. Tunstall,10 the will, which provided for a substitution in favour
of the illegitimate sons of the testator were his legitimate son not to leave
8Supra, at p. 2 of the judgment.
4A doctrine, incidentally, by which Quebec courts are not bound, in theory at any rate.
See in this connection Mignault, “The Authority of Decided Cases” (1925), 3 Can. Bar
Rev. 1, at p. 19.
4aThere have been instances where an obiter dictum has been “raised to the dignity
of a binding principle by time and repetition.” This has been adversely commented upon
by W. Friedman, “Stare Decisis” (1953), 31 Can. Bar Rev. 723 at p. 734.
5Friedmann, Supra.
620 L.CJ. 49.
Supra.
SSupra.
9(1953), 13 R. du B. 245, at p. 253.
lOSupra.
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ARTICLE 831 C.C.
lawful issue at his death, had been passed in 1789. At the time, the Ciyil Code
was of course not in existence. Article 10 of the Quebec Act, 1774, regulated
the matter of testamentary dispositions, and the article read as follows:
” . . . it shall and may be lawful to and for every person in the said Province,
whether Canadian or English, that is Owner of any Goods or Creditors in the same,
and that has a right to alienate the said Land, Goods or Creditors in his lifetime by
Deed of Sale, gift or otherwise, to devise or bequeath the same at his or her death
by his or her last Will and Testament to such Persons, and in such manner as he or
she shall think fit, any Law, Usage or Custom heretofore or now prevailing in the
Province to the contrary hereof in any wise notwithstanding.” (writer’s italics).
The concluding clause in article 10, it becomes evident, differed in radical
fashion from the concluding clause in article 831 C.C. If, then, the decision
in King v. Tunstall1″ is to be considered, it should be done with these dif-
ferences of the law and of fact in mind, and the consequences flowing there-
from. In some legal circles, much is made of the following remarks of the Law
Lords:
“Nobody surely can suppose that it is a crime in a man to express by his will his
wishes as to what should be the devolution of his property after his death, or that
it should go in a particular direction, even although that direction should be in
favour of an adulterine bastard –
leaving it open to the law to say whether the
wish shall or shall not take effect.” (writer’s italics).12
By their own words, their Lordships admitted that the law could state
whether a testator’s wishes were, or were not, to take effect with regard to the
direction in which the estate was to devolve. In 1789, the estate could devolve
in any direction chosen by the testator. The concluding clause of article 10
of the Quebec Act made that clear. In the year 1955 the concluding clause of
article 831 of the Civil Code makes it equally clear that the estate cannot
devolve in a direction that contravenes public order and good morals.
Attention is now directed to the case of Russell v. Lefranfois. It was held
here:
“That, as it appeared that the only consideration for the testator’s liberality to J.M.
was that he supposed her to be ‘my beloved wife Julie Morin’ whilst at the time
J.M. was, in fact, the lawful wife of another man, the universal bequest to J.M.
was void, through error and false cause.”1 3
The holding speaks for itself.
Finally, there is the decision rendered by the Court of Appeal in Archam-
bault v. Guerin.’4 The wife sought to set aside the will of her husband which
had disposed of his entire estate in favour of the woman with whom he had
been living in concubinage, Defendant in the case. The nullity of the will was
prayed for on the following grounds:
(a) that the will had been prepared by the notary on instructions
of Defendant and not of the testator;
1lSupra.
l2 Supra, at p. 76.
13(1883), 8 S.C.R. 335, at p. 336.
14[1948] K. B. 408.
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(b) that the testator had signed the will as the result of undue in-
fluence exercised by Defendant;
incapable of so doing.
(c) that at the time the testator signed the will, he was mentally
The Appeal Court, reversing the judgment of the Superior Court, held that
Plaintiff had failed to make satisfactory proof of her allegations. The position
taken by Judge Barclay, 14a upholding the validity of bequests between con-
cubinaries, did not constitute the ratio decidendi of the case but was only
obiter dictum, described by one author as the “‘hors-d’oeuvre vari6s’ of
jurisprudence. ‘ ’14b
Vaudreuil v. Falardeau, a decision rendered by Judge Surveyer, categor-
ically rejects the principle of a freedom of willing that is completely without
restriction. 15
Considering these facts, the writer, fully aware of the authority of the Court
of Queen’s Bench, differs nevertheless with the dictum of that august tribunal
that there is “une jurisprudence bien 6tablie” on the matter of validity of
wills in which a concubine is constituted universal legatee.
Can we, however, proceed on the basis that the concluding clause of article
831 C.C. is a dead letter?’5 To do so, one must assume that when the re-
striction appearing at the end of the article was added –
a restriction that
existed neither in the Quebec Act of 1774 nor in the Act of 180115b –
it was
done for no particular reason and with no particular purpose in mind. Such
an assumption has no justification, in the absence of proof to support it. Dis-
cussion is still permissible, and, in fact, called for.
Assuming, then, that the question of validity of wills in which a concubine is
constituted universal legatee is still open for discussion, the problem of public
order, of good morals, now comes up for consideration.
What is meant by public order? What constitutes good morals? These are
questions of transcendent importance and have been the subject matter of
l 4 aPage 2 of the judgment.
14bFriedmann, Sufira, at p. 745.
151950 P.R. 193.
IgaIn this connection, see the article by Judge Surveyer entitled “Un Cas d’Ing6rence
des Lois Anglaises dans notre Code Civil,” (1953), 13 R. du B. 245, at p. 255.
15bSupra, p. 255; also p. 248.
The Act of 1801, intended to remove some misconceptions that had arisen with respect to
the interpretation of article 10 of the Quebec Act, 1774, covering testamentary dispositions,
read as follows:
Toute personne saine d’entendement, majeure et usant de ses droits, pourra l6guer par
testament ou acte de derni6r volont6, soit entre conjoints, en faveur du marl ou de la
‘un ou de plusieurs des enfants, A son choix, ou en faveur de
femme, soit en faveur de
qui que ce soit, tous et chacun ses biens, meubles ou immeubles, quelle que soit la tenure
desdits immeubles, et qu’ils soient propres, acquits ou conqu6ts, sans aucun rServe,
restriction ou limitation quelconque . . . (writer’s italics).
Note again the striking difference between this clause and the concluding one in article
831.
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ARTICLE 831 C.C.
study by many writers both in the Province of Quebec as well as in France.
In a commentary of the type now submitted, restricted as to space, what is
said must be stated briefly.
Trudel has expressed himself in this manner:
“L’ordre public comprend toute chose qui intresse plus directement la soci~t6 que les
individus. Dans cette notion il faut 6videmment grouper d’abord tout le droit
public . . .
“Mais l’ordre public n’est pas limit6 par le droit public. Dans le droit civil, toute
disposition qui intresse d’abord la soci~t6 se range sous cette notion.”1 6
Further on, he states:
“Les bonnes moeurs font Evidemment partie de l’ordre public. Elles constituent ce-
pendant une notion bien caractristique qu’il importe pr~eiser quelque peu. Elles sont
bas~es sur la morale chrtienne.”‘ 7
Baudry-Lacantinerie takes a secular, rather than a religious, approach.
“Qu’est-ce que l’ordre public? que sont les bonnes moeurs? Notions variables, 6vi-
demment dans le temps et dans l’espace. Mais ]a pens6e des r6dacteurs du code civile
est claire. Les jurisconsultes romains l’avaient dejA exprim~e dans cette formule:
privatorum conventio jur publico non derogat. (L. 45, D., De reg. juris., 50, 17).
Et les expressions ‘droit public’ et Tordre public ont &6, i divers reprises, em-
ployees avec la mme signification par Portalis, qui entendait par droit public (hoc
sensu) tout ce qui, dans les lois ‘int6resse plus directement la soci&t que les parti-
culiers.’ On doit donc ranger parmi les lois int6ressant l’ordre public et les bonnes
moeurs toutes celles qui, par leur fondement, reposent sur des conceptions consid6-
rees par le lgislateur, organe de la pensie nationale, comme essentielles au main-
tient de l’existence de la socit6 telle qu’il la veut.”18
Laurent envisages the problem from a viewpoint in-between:
“Mais oii chercher cette morale qui servira de r gle au juge? Tel sera certes le sen-
timent du juge, s’il est catholique. Si la sociWt
enti~re &ait catholique, la difficult6
serait levee, il n’y aurait qu’une morale religieuse. Est-il n6eessaire d’ajouter qu’il y
a plusieurs religions et qu’elles ne s’accordent pas toujours sur la morale? Trouve-
rons-nous plus de certitude dans la morale philosophique? Les philosophes sont
divis~s aussi bien que les religions. Est-ce 5. dire que le juge est sans r~gle en cette
mati~re? Non, on exag~re, quand on se plaint de l’incertitude de la morale; il fa-
drait dire que la morale est progressive; elle change donc, mais en s’6purant, en se
perfectionnant. Et quel est l’organe de ce progr s incessant? La conscience humaine.
“II y a, A chaque 6poque de la vie de l’humanit&, une doctrine sur la morale que la
conscience ginrale accepte, sauf des dissidences individuelles qui ne comptent pas.”’19
Planiol et Ripert approach the problem of validity of gifts and bequests be-
tween concubinaries from the point of view of cause.
“La jurisprudence a 6t6 conduite, sur la base de la th~orie de la cause, 5 attenuer la
latitude laiss6e aux concubins. Elle fait une distinction suivant le motif impulsif
et d~terminant qui a pouss6 le concubin liberal. A-t-il agi en vue de commencer,
reprendre, ou remunerer des relations coupables, la libralit6 est nulle. A-t-il au
contraire entendu au moment de la rupture ou postrieurement r~parer le prejudice
port6 A l’autre concubin, la libralit6 est valable. Cette distinction mrite d’Etre
approuv~e. Elle p~che cependant sur un point: entre concubins il existe une foule de
lib6ralit6s, sp6eialement des legs, dont le motif n’est point indiqu6 dans l’acte, et im-
possible 6, d6couvrir d’une fa~on precise. Des concubins Ages ayant vcu longtemps
ensemble se font des lib~ralit~s A la mani~re des 6poux. Ces lib6ralit6s sont-elles va-
lables? La jurisprudence se prononce pour
‘affirmative. Par certains c6t6s, cette
‘6 Traiti de Droit Civil, t. 1, p. 87.
170p. cit., p. 88.
18Droit Civil, 2nd ed., vol. 1, p. 233.
1gDroit Civil Frangais, 3rd ed., no. 56, p. 90.
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jurisprudence peut se justifier, il n’existe pas d’incapacit~s entre concubins2o et le
motif de la lib~ralit6 itant incertain, il vaut mieux se prononcer pour la validit&
Moralement et mrme juridiquement, cette solution est cependant critiquable; le motif
de la lib6ralit6 n’est point difficile A d6couvrir, c’est le concubinage, et, en dehors
d’une ide de reparation, cette consid6ration est immorale et entache l’ensemble de
la lib6ralit6. Sur la base de la th~orie de ]a cause, on pourrait arriver A une solution
pratique assez voisine de celle de l’ancienne incapacit& La jurisprudence moderne
est trop indulgente.” 21
The apologists for wills which constitute a concubine as universal legatee
have tried to justify them as reparation for a wrong done. But can one right-
fully speak of reparation where the partner to an adulterous relationship is
provided for whilst the lawful wife and children are left penniless? Unless our
social structure, and the set of values on which it is based, have changed in
radical fashion, the answer must be in the negative.
Nor can a disposition of the type in question be justified on the basis of
secular morality. For secular morality of the twentieth century, revolted by
an eighteenth century policy of “laissez-faire”, holds that there are certain
fundamental human rights which take precedence, even over private property.
One of these fundamental rights is the protection due to the family unit, basis
of our social structure. A testamentary disposition which disinherits the lawful
wife and children is a violation of such fundamental right.
That various jursidictions have gradually come around to this notion of
thinking is made evident by legislation passed by them. In the words of Me.
Turgeon:
“Dans presque tous les pays anglo-saxons, la libert6 de tester n’est plus absolue:
on ne l’a pas supprim&, mais on l’a restrainte par des lois particuli6res dans le but
d’assurer la subsistance du conjoint et des enfants.”’22
In the Province of Ontario, there is a statutory enactment entitled “The
Dependents’ Relief Act, ch. 101 of the Revised Statutes of Ontario”, in virtue
of which the surviving consort and the children incapable of earning their
own living may institute proceedings by way of petition, where the testator
has failed to make adequate provision for them. After proof made, the court
has discretion to issue an ordinance to remedy the situation. Such ordinance
may impose on the legatee the obligation of paying to the dependents an
alimentary pension; or it may oblige the legatee to hand over a certain amount
of money to the surviving consort and the children; or, again, it may order that
certain moveable or immoveable property of the succession be subject to
provide an income in favour of the dependents.23 Laws similar in nature have
201n Quebec law, gifts inter vivos between concubinaries are of course limited to
maintenance.
21Droit Civil, 1933 ed., vol. 5, no. 266, p. 270. Considering this difference between
French law and Quebec law as to gifts inter vivos between concubinaries, and con-
sidering further that a bequest by will is a liberality, without the intervention of the
person benefitted it is true, but a liberality nevertheless, the Quebec jurisprudence is even
more indulgent than that of France.
22(1955), 15 R. du B. 204 at p. 208.
23Supra, p. 208.
No. 1]
ARTICLE 831 C.C.
been adopted in the Provinces of British Columbia, Alberta, Manitoba and
Saskatchewan. 24 In England, and also in many of the states of the United
States of America, the principle of unrestricted freedom of willing has likewise
been modified by statutory enactment. 25
In France, the l6gitime or reserve has been a prominent feature of succes-
sion law for many centuries. Pothier, under the heading of “De la nature de la
ligitime”, defined it in the following terms:
“67. Les pire et mere doivent par le droit naturel, i leurs enfants, une part de leurs
biens, qu’on appelle ligitime. La loi civile en a fix6 le quotit6. Notre coutume l’a fix6
A la moiti6 de la part que l’enfant aurait eue dans les biens de sesdits p6re ou mre,
s’ils n’en eussent dispos6 par donation entre-vifs ou derni~re volont6.&’ 26
And under the Napoleonic Code, article 913, the proportion of the reserve
is set out as follows:
“913. Les libralit~s, soit pas actes entre-vifs, soit par testament, ne pourront exc6der
la moiti6 des biens du disposant, s’il ne laisse i son d~c~s qu’un enfant lgitime; le
tiers, s’il laisse deux enfants; le quart, s’il en laisse trois ou plus grand nombre.”
The reserve provides for the children but not for the consort. Provision
for the consort is made in virtue of article 205 of the Napoleonic Code. Ac-
cording to this article, the succession of the deceased consort owes to the
surviving one aliment, where the latter is in need. The delay for making this
claim is one year from the death of the predeceased consort, and where there
has been a partition, one year from the completion of such partition. All the
heirs owe this alimentary pension. The pension, however, is not levied out of
the personal property of the heirs, but out of such property as devolved to
them from the succession.
Me. Turgeon admits that the 16gitime or reserve is a happy compromise
between two traditions: on the one hand, the tradition of protecting the family;
on the other, the notion of individual liberty and the right to dispose of one’s
property as one wishes. He admits that the lgitime or reserve is in harmony
with the principles and moral tenor of the Quebec Civil Code. 27 Nevertheless,
he does not approve of its introduction into the law of this province, basing his.
opposition on the fact (or so it would seem to him) that Quebec law on
testamentary disposition is of English inspiration, different from the old and
modern French law. There does not exist unanimity on this point.28 But,
admitting for the sake of argument, that essentially the law is of English in-
spiration: does that justify a further conclusion, that the law is sancrosanct?
That its basis cannot be changed? Legal rules, whether of English or French
origin (or any other for that matter) are the products of men’s minds; as
such, they are subject to analysis, criticism, and – where need be –
to
change.
24Supra, p. 209.
25Supra, p. 209.
20Edition of Bugnet, vol. 1, pp. 370-371.
27Supra, p. 206.
28Billette, Donations et Testaments, vol. 1, p. 65.
30
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Me. Turgeon favours the Ontario statute because of its suppleness. The law
may be supple but, in the view of the writer, it is based upon a wrong
principle, that of mere need. The basis for provision of the children after the
death of a parent should be more than that. The ties of blood, the duties and
sentiments that should be the consequence of such ties, are not to be computed
alone in terms of dollars and cents, in terms of the daily bread. Laurent
discusses the question in connection with a statement made by Montesquieu
to the effect that the natural law obliges a father to supply aliment to his
children but not to constitute them heirs. Laurent takes Montesquieu severely
to task.
“Est-ce que le pZre Montesquieu aurait rempli ses devoirs envers son fits en faisant
de lui un magon? II lui devait l’&Iucation, et une 6ducation en harmonie avec les
facult~s dont la nature l’avait dou&, en harmonie avec ]a position sociale qu’il devait
occuper, donc aussi des biens qui lui permissent de continuer la vie d’aisance ou
de richesse i laquelle les parents eux-nrnes destinent leurs enfants, en les 61evant
selon leur fortune.”29
These remarks apply by analogy to the wife. Where a wife has been married
for twenty or thirty years (or more or less as the case may be), has shared
her husband’s fortunes good and bad, has helped in the founding of the family
wealth (in some instances by her actual work and assistance in the outside
world; in others, by providing the background that made possible her hus-
band’s efforts in that direction), it is not fair, it is not just, that the bulk of
this wealth should go to a stranger, to another woman, whilst the wife is left
to get along on the pittance of an alimentary pension. A law which limits the
wife to an alimentary pension whilst a third party obtains the bulk of the
family wealth, is in effect a law which sanctions selfishness and evasion of
family obligations.
The modem succession law of France is not without fault either. To limit
the surviving consort to an alimentary pension, and that only in the case of
need, is not more justifiable, morally, in the law of France than in the law
of any other jurisdiction. The principle of the reserve, or lgitime – whose
should include the
influence has been felt beyond the borders of France –
surviving consort as well as the children.
The Civil Code of Switzerland, as well as of other parts of Europe, provides
for a reserve that includes the consort as well as the children.3 0 Surely it is
not too much to expect a law of succession in this province that is equally
as civilized, equally as humane! )Nor is there reason for assuming, as Me.
Turgeon seems to have done, 31 that the economic and social fabric of this
province would render difficult the working of such a law. By and large,
Europe is as industrialized as the Province of Quebec; the differences in the
economic and social structures between the two are not as great as the op-
ponents of the reserve, or lgitime, consider them to be.
29Droit Civil Franfais, 3rd e&, vol. 12, p. 31.
SOSupra, p. 207.
-%Supra, p. 210.
No. 1]
ARTICLE 831 C.C.
31
But whether revision of the succession law of this province is to be made
along the lines of the reserve, as in France, or along the lines of the statute as
in Ontario, revision there must be to prevent the repetition of a case like
Crete v. Fortin. WNo culture, no civilization worthy of being called such can
afford to have on its statute books a law which gives validity to a will in which
the lawful wife and children are disinherited whilst the partner to an adulter-
ous relationship is bequeathed the testator’s entire estate.
It was Lord Killowen who once stated that the calibre of a civilization was
to be found not in the wealth and power of its cities but in its system of laws
and the degree of protection afforded by these laws to the weakest and
humblest of subjects. That test is as applicable to the Province of Quebec as
to every other jurisdiction comprising the family of civilized nations. It is
something always to be kept in mind, conscious –
of the fact
that, for the things which it has failed to do as well as for the things which
it has done, a people is answerable not only to the age in which it had its
being but to the bar of history as well.
as we must be –
