What to do with a will after death?

Capture of the deceased is frequently raised in court when an interested party wishes to contest a will.

In a recent decision, the Quebec Superior Court reiterated the criteria applicable to actions involving claims for the capture of the deceased.


Legal basis for the capture

Capture is the equivalent of fraud and deceit in civil matters, but applied to the particular case of the testator of a legacy that he would not have made otherwise but for the capture of the persons involved.

Capture qualification

In Succession de Charette (2017 QCCS 1381), the Quebec Superior Court reiterated that it is not per se illegal for a person to curry favor with a testator. To be illegal and constitute capture, the defendants’ maneuvers must be fraudulent. For example, maneuvers that are ” accompanied by artificial practices, such as the interception of correspondence or the dismissal of visitors, or the systematic denigration of close relatives ” constitute capture:

[233] To vitiate a testator’s consent, the maneuvers must be fraudulent and they must have been decisive in the way the testator made his will. What’s more, it’s well established that it’s not illegal per se for a person to curry favor with a testator. Professor Beaulne explains the concept of capture as follows:

690 – Capture or suggestion – Fraud is no longer included in the list of defects in consent. […] Nevertheless, a will can be annulled on the grounds of fraud, i.e. when fraudulent manoeuvres have been used and these have actually provoked the testator’s decision. In the case of gifts, and in particular wills, we often speak of capture and suggestion, an expression borrowed from the Ancien Droit.

691– Necessity of fraudulent maneuvers – It is not illegal in itself to curry favor with the testator. Thus, showing great zeal towards a sick person, or multiplying expressions of affection towards him or her, when in fact one is seeking to be instituted as legatee, is not in itself a cause of nullity, nor is calling a notary and giving him or her instructions as to the will to be prepared. As the Court of Appeal put it:

To establish capture, it is necessary to prove the existence of fraudulent or deceitful maneuvers. It is not enough to demonstrate that the person was simply trying to curry favor with the testatrix, or in Ronald’s case, expressing his desire to become the owner of the residence in which he lived with his mother.

692. However, acts of capture become fraudulent when they are accompanied by artificial practices, such as intercepting correspondence or dismissing visitors, or systematically denigrating close relatives. This is what the Court of Appeal said in the Gauthier case:

The defendants went beyond mere suggestions or advice to the testator. Their attitude is of a fraudulent nature, leading to the nullity of the will, since these defendants took advantage of the testator’s will to suggest how he should test […].

693. However, the fraudulent maneuvers must have been determinative of consent. A causal link must therefore be established between the actions of the person accused of capturing and the content of the will, as it is essential that these actions had an influence on the testator’s consent. It is always up to the person who alleges capture to prove it, and mere suspicions are not enough to establish it: he “[…] must convince the Tribunal that it was a determining factor in the wishes expressed in the contested will.” Proof may be indirect, but it must be preponderant. […]

– Estate of Charette (2017 QCCS 1381)

Burden of proof

Since the deceased is obviously no longer present to give his version of events, proof of capture is generally based on presumed facts:

[234] Proof of capture is generally based on presumptions of fact which, as already mentioned, must be based on serious, precise and concordant evidence, and there is no reversal of the burden of proof.

– Estate of Charette (2017 QCCS 1381)

The absence of direct evidence is a major obstacle to establishing sufficient proof for a court to conclude that a deceased person has been captured. In fact, the Quebec Court of Appeal points out that captation claims are often difficult to establish:

[95] There is no direct evidence here that the respondent or his sister diverted the testator’s will by fraud. It should be noted, however, that proof of capture is often difficult to establish. Naturally, the alleged victim of the maneuver is no longer available to give her version of events. Secondly, as stated in Fauteux v. Chartrain, “it is rare for the author of the maneuvers employed, who must benefit from the liberality, to act directly or openly; he prefers, if he is cunning, to take oblique and concealed routes which will lead more surely and more discreetly to his ends”. What’s more, the law of liberalities is traditionally rather permissive with regard to the persuasion, even persistent, that a person can exert on a donee or legatee, as long as the latter does not fall into fraud: the French authors Terré, Lequette and Gaudemet write that the requirement of fraud in testamentary matters is not satisfied “when there has only been flattery of the disposer’s tastes or mannerisms, or manifestations of devotion – sincere or simulated – of such a nature as to arouse affection”.

– Larocque v. Gagnon, 2016 QCCA 1237

In short, it is important to emphasize that devotion, even simulated devotion, of such a nature as to arouse the affection of the deceased is irrelevant in assessing the presence of capture. In this way, it is of little importance to demonstrate that a third party has suddenly devoted himself to the end of a deceased person’s life in order to obtain a change to his will. The burden of proof is very high indeed, requiring proof that the defendants took advantage of the testator’s will to suggest how to test.