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How often do we hear that threat being made? How realistic a threat is it?

The recent Superior Court decision in Ashegh Estate Ashegh (2016 QCCS 6157) prompts me to reflect upon this question.

The facts were these: Mr. and Mrs. Ashegh married in Germany in May 1995 and had two children, Nathalie and Melanie.

In 2012, rumours began to circulate to the effect Madame had been unfaithful, more particularly, that she was not virginal on their wedding night.

In August 2013, Mr. Ashegh is hospitalized and is health is fragile. He apparently decides, with the urging of his sister Roza, to change his will to disinherit his wife in favour of his children, because of the wife’s alleged infidelity. He makes a new will naming his sister Roza as universal legatee and dies about one month later.

At the meeting with the notary, Mr. Ashegh instructs her to correct the draft will the notary had prepared, and eventually names his sister Roza as universal legatee, not the children. According to the notary’s testimony, Mr. Ashegh was initially intending to leave his estate to his sister Roza but if Roza was no longer around, to put things in the name of his other sisters, because he did not want his wife to manage the children’s money. The notary testified “he wanted his sister to give the money to the children” and “he was confident that she [Roza] would give the money to the children”.

In parallel with these events, on August 28, 2013, Mr. Ashegh has a telephone conversation with his wife, that is surreptitiously recorded by Roza and during which Mr. Ashegh relates his wife’s alleged infidelities. This tape recording is played by Roza at Mr. Ashegh’s funeral reception, organized by his wife, thus causing a huge scandal.

Mrs. Ashegh sued to set aside the will made by her late husband shortly before his death, as well as for damages for defamation. Her principal ground for setting aside the will was undue influence on the part of the sister Roza, who took care of the deceased in the hospital during his final illness, because Madame was working full-time to support the family. Roza was also responsible for finding the notary who made the new will, taking her brother to see the notary and nourishing his suspicions regarding Mrs. Ashegh’s alleged infidelity.

The Court refused to set aside the will on the basis of undue influence, because the proof showed that Mr. Ashegh had expressed to a work friend his intention to disinherit his wife as a result of her alleged infidelity, apparently before his sister Roza would have convinced him to do so.

On the other hand, the Court does set aside the will based on the notion of legal error: The Court held that Mr. Ashegh made his new will, based on the false belief that his assets would devolve to his children, which was not his intention. This was a somewhat novel approach and merits further reflection.

In the Civil Code of Quebec, there is no chapter dealing specifically with causes of nullity of wills for reasons other than formality. A will is a unilateral act, not a contract. However, the Code has many general rules that apply to juridical acts in general, and it has been argued that the causes of nullity that apply to contracts also apply to wills. If this is so, then the consent of a testator to make a will may be vitiated by error, but then the error has to relate to the nature of the contract, the object of the prestation or any essential element that determined consent. If this type of error exists, then a contract can be set aside.

So how does this apply to the facts in Ashegh? Essentially, the Court reasoned that Mr. Ashegh’s essential intent was to leave his estate to his children not to his sister Roza. But this intent was improperly expressed by the legal professional in the will per se. With respect, it seems to me that based on the facts as reported in the judgment itself, this conclusion was questionable.

Firstly, the will itself is the best and first expression of what the testator wanted to do. There was no ambiguity in the will regarding this issue. The testator left all of his assets to his sister Roza.

Secondly, the notary’s testimony was not that the assets were left to the sister with the specific charge of being passed on to the children. There was nothing in the will to that effect. Rather the notary testified that “he wanted his sister to give the money to the children” and “he was confident that she [Roza] would give the money to the children”. Perhaps Mr. Ashegh did not understand all of the legal ramifications of what he signed. However, it is difficult to say that he made an error as to what he was doing: He was leaving his assets to his sister because he believed that she would give the money to the children. This is the same type of belief that motivates husbands and wives to leave their respective estates to each other, with the expectation that the last to die will leave everything to the children.

The Ashegh case seems to open the door to the possibility that children who are disinherited by the second surviving spouse could argue that the will of the first spouse to die should be set aside because of error. And it seems to me that this a Pandora’s box, best left firmly closed.

One final note: Mrs. Ashegh’s defamation case against Roza was maintained and she was awarded damages of $25,000.