Dansereau v Berget
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1953 |
| Year | 1953 |
| Court | Privy Council |
Canada - Supreme Court - Jurisdiction - Will - Grant of probate - Not conclusive even between contesting parties - Judgment of provincial appellate court not “final” - No jurisdiction in Supreme Court of Canada to entertain appeal -
By section 2 of the Supreme Court Act (R.S.C. 1927, c. 35):
“(b) ‘Final judgment’ means any judgment … which determines … any substantive right of any of the parties in controversy in any judicial proceeding”; and by section 36, “… an appeal shall lie to the Supreme Court from any judgment of the highest court of final resort … in any province of Canada pronounced in a judicial proceeding … where such judgment is, (a) a final judgment; …”
According to the law of the Province of Quebec the grant of probate of a will is not, as it is in England, conclusive, and does not create res judicata even between parties who have contested its validity, and the probate can be cancelled on proof of a later will. Where, therefore, the Court of King's Bench of Quebec had reversed a judgment of the Superior Court of Quebec, which latter court had upheld the probate of the earlier of two wills of a testator, the judgment of the Court of King's Bench, which had granted probate of the later will, was not a “final” judgment within the meaning of section 2 of the Supreme Court Act since the grant of probate was not conclusive and could be contested in appropriate proceedings, and did not determine a substantive right in a judicial proceeding within the meaning of that section. Accordingly, the judgment of the Court of King's Bench not being “final,” the Supreme Court of Canada, by virtue of section 36 of the Act, had no jurisdiction to entertain an appeal from it, and the judgment of the Supreme Court, which purported to affirm that of the Court of King's Bench, having been made without jurisdiction, the order of the Supreme Court should be varied so as to confine it to an order dismissing the appeal for want of jurisdiction and omitting that part of the order which affirmed the probate of the later will.
CONSOLIDATED APPEALS (No. 35 of 1952), by special leave, from a judgment of the Supreme Court of Canada (October 22, 1951) dismissing an appeal from a judgment of the Court of King's Bench of Quebec (April 28, 1950) which had set aside a judgment of the Superior Court of Quebec (March 5, 1948).
The testator, Eugène Berthiaume, a publisher and journalist of Montreal, died on August 31, 1946. He was the son of the late Trefflé Berthiaume, and the present appellant, J. Lucien Dansereau, was one of the latter's trustees and had been an intimate friend throughout his life of Eugène Berthiaume. The first respondent, Colette Berget, who was born in France, was Eugène Berthiaume's niece by his second marriage, and had lived with him for about 12 years before his death. The second respondent, Fanny Irenée Gabrielle Colin, was Eugène Berthiaume's third wife.
On March 14, 1935, Eugène Berthiaume made a holograph will leaving all his property to the appellant. On July 2, 1937, Berthiaume married the second respondent, and on November 1, 1937, he made a holograph will leaving all his property to her. On September 28, 1943, he made a will in notarial form revoking his previous wills and...
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