TITLE VII HABEAS CORPUS IN CIVIL MATTERS

851. Any person who is confined or otherwise restrained of his liberty, except under an order in civil matters granted by a court or a judge having jurisdiction, or for some criminal or supposed criminal matter, or any other person on his behalf, may apply to a judge of the Superior Court to obtain a writ of habeas corpus ordering the person under whose custody he is detained to bring him forthwith before a judge of the court and to show the cause of his detention, so that it may be decided whether such detention is justified.

The demand is made by motion supported by an affidavit affirming the truth of the facts on which it is based.

1965 (1st sess.), c. 80, a. 851.

852. In the case of a person kept without his consent in an institution governed by the Acts respecting health services and social services and in the case of a person confined in a house of detention or a penitentiary, the petition cannot be presented to the judge unless it has been served upon the Attorney General, with a notice of the date of its presentation. In other cases, the judge may, if he considers that the Attorney General has sufficient interest therein, either order that the motion be served upon him and postpone his decision in consequence, or immediately authorize the issuance of the writ and require that such service be made upon him before the date fixed for the return.

1965 (1st sess.), c. 80, a. 852; 1992, c. 21, s. 127; 1992, c. 57, s. 391.

853. The writ is prepared by the clerk and must contain on the back the names of the judge on whose order it has been issued, of the person who has applied for it, and of the person who has given the affidavit required. The writ is served by leaving the original with the person to whom it is addressed, or with his representative or agent at the place where the person is confined; if it is addressed to several persons, the original is left with one of them and copies are left with the others.

The return of service is made on the back of a copy of the writ or on a separate paper which is attached thereto.

1965 (1st sess.), c. 80, a. 853; 1992, c. 57, s. 420.

854. A person who does not comply with the order contained in the writ is guilty of contempt of court.

1965 (1st sess.), c. 80, a. 854.

855. The judge before whom the return is made must proceed, as soon as possible, to examine into the truth of the facts alleged. He may allow the allegations of the return to be contested in writing, authorize such written proceedings as he considers appropriate, and proceed himself to the trial of the issues or refer the case to the court. He may also admit to bail the person confined, upon security being given that he will appear at the trial and will obey the orders which may be given to him.

1965 (1st sess.), c. 80, a. 855.

856. The judge or the court adjudicates as to costs in accordance with the circumstances.

1965 (1st sess.), c. 80, a. 856.

857. Whenever the issuance of a writ of habeas corpus has been once refused by a judge of the Superior Court, the application cannot be renewed except before a judge of the Court of Appeal, and once only, unless it is based upon new facts.

1965 (1st sess.), c. 80, a. 857; 1979, c. 37, s. 43.

858. The final judgment which orders the release cannot be executed until five days have elapsed since it was rendered, unless there has been filed in the record a declaration of the adverse party, and of the Attorney General if he has been impleaded, that an appeal will not be taken.

The court may order the provisional release of the person confined on such conditions as it determines if it considers that the interests of justice will thus be better served.

1965 (1st sess.), c. 80, a. 858; 1992, c. 57, s. 392.

859. The appeal from a final judgment is governed by the provisions of articles 491 and following, so far as applicable, except that:

(1) it must be instituted within five days, if the judgment orders release, or within 10 days if it is refused;

(2) the clerk must transfer the record within two days of the filing of the inscription;

(3) except for the appellant the parties who wish to be heard must appear.

(4) the case is placed on the roll, as soon as the time contemplated by the preceding paragraph has expired, and it is heard at the first session of the court held either at Quebec or at Montreal.

1965 (1st sess.), c. 80, a. 859; 1982, c. 32, s. 52; 1992, c. 57, s. 420; 1999, c. 40, s. 56.

860. After an appeal is instituted, the Court of Appeal may release provisionally the person confined on such conditions as it determines if it considers that the interests of justice will thus be better served.

1965 (1st sess.), c. 80, a. 860; 1992, c. 57, s. 393.

861. Habeas corpus proceedings have precedence over all other matters, both before the Superior Court and before the Court of Appeal.

1965 (1st sess.), c. 80, a. 861.

BOOK VI

NON-CONTENTIOUS MATTERS

CHAPTER I

GENERAL PROVISIONS

SECTION I

RULES APPLICABLE BEFORE THE COURT

862. Proceedings in virtue of the provisions of this Book are taken by way of motion presentable 10 days after service upon or, where the law so provides, notification to the persons entitled thereto.

1965 (1st sess.), c. 80, a. 862; 1992, c. 57, s. 394.

863. Failing an express provision to the contrary, applications are presented to the judge or to the clerk.

The decisions of the clerk may be reviewed by the judge on an application served within 10 days. In cases excluded from the competence of the clerk, applications are presented to the judge.

However, an application that is contested is presented to the court. In urgent cases, the judge or the clerk may shorten the time limits prescribed in this Book.

1965 (1st sess.), c. 80, a. 863; 1992, c. 57, s. 395.

863.1. The court, the judge or the clerk ensures that the application has been notified to or served on the interested persons. It or he may authorize or order, even of its or his own motion, the service or notification of the application on or to any person it or he determines, or the production of additional proof, including experts\' or consultants\' reports.

1992, c. 57, s. 395.

863.2. At the hearing, the judge or the clerk may, depending on the nature of the application, authorize the persons who are present and have an interest in the application to make observations or representations that may afford information useful for making his decision.

However, if the judge or clerk ascertains that the observations or representations made by a party constitute actual contestation of the merits of the application, he orders that the record be referred to the court on the conditions he determines.

1992, c. 57, s. 395.

863.3. The clerk notifies forthwith the Public Curator of any judgment relating to the tutorship to an absentee or a minor, to the institution, review of or release from protective supervision of a person of full age, to the homologation of a mandate given by a person in anticipation of his incapacity and to the appointment or replacement of a tutor or curator by sending him a copy of the decision, free of charge.

1992, c. 57, s. 395.

SECTION II

RULES APPLICABLE BEFORE THE NOTARY

863.4. An application relating to a tutorship council, to the appointment or replacement of a tutor to a minor, to the institution or review of protective supervision, to a mandate given in anticipation of the mandator\'s incapacity, to the probate of a will or to letters of verification may also be presented to a notary in accordance with the special rules contained in this Book.

The same applies to an application relating to the appointment or replacement of an adviser, a tutor or a curator to represent a person of full age.

1998, c. 51, s. 3; 2002, c. 7, s. 139.

863.5. The notary must notify the application to the interested persons and provide them with all information relevant to the object and causes of the application. However, the application must be served on the person concerned in accordance with article 135.1.

The application must be accompanied with a notice clearly stating the time and place at which the notarial operations are to begin as well as the object of the application and the nature of the rights of the interested persons, including their right to present any observations or make any representations they see fit or to oppose the application.

A copy of the notice is deposited by the notary at the office of the competent court; the deposit is effected free of charge and solely for publication purposes. The clerk must inform the notary without delay of any observation, representation or opposition relating to the notice.

1998, c. 51, s. 3.

863.6. In exercising notarial functions under this section, the notary must act in the interest of the person concerned by the application. In the case of protective supervision or a mandate in anticipation of incapacity, the notary must also act in such a manner as to protect the rights and autonomy of the person concerned.

1998, c. 51, s. 3.

863.7. Minutes that identify the interested persons, including the person who presented the application, and that set out the facts on which the application is based are drawn up by the notary; the minutes contain a complete and detailed report of the notarial operations and of the notary\'s conclusions, in particular concerning the testimony that the notary is required to take and the deliberations of the tutorship council or of the meeting of relatives, persons connected by marriage or friends.

1998, c. 51, s. 3.

863.8. Where observations or representations made constitute actual contestation of the merits of the application examined by a notary, the notary must relinquish the matter and inform the interested persons; in such a case, the notary draws up the minutes of the operations that have taken place and transfers the matter to the competent court, which is seized of the matter upon the deposit of the notary\'s minutes.

The court may, if it considers it expedient, assign to the notary the mission of taking all evidence necessary for the pursuit of the matter, and fix the time within which the notary must report on the notarial operations to enable the court to make its own assessment of the facts.

1998, c. 51, s. 3.

863.9. In matters pertaining to the tutorship to a minor, the tutorship council, the protective supervision of a person of full age or a mandate in anticipation of incapacity, the notary must deposit without delay at the office of the court of the domicile or residence of the minor or the incapable person of full age an authentic copy of the minutes, accompanied with all supporting documents.

The notary must notify a copy of the minutes to the interested persons, including, according to the case, the minor if the minor is 14 years of age or over or the person of full age, the tutor or curator, the mandator, the mandatary and the Public Curator; the minutes must be accompanied with a notice of at least 10 days of the date of deposit of the minutes at the office of the court. The notice must also mention that in the absence of opposition before the date of the deposit, the judge or the clerk may accept the conclusions without further delay.

1998, c. 51, s. 3; 2002, c. 7, s. 140.

863.10. The court is seized of the matter upon the deposit of the notary\'s minutes, subject to article 863.11.

In the absence of opposition, the judge or the clerk may accept or reject the conclusions set out in the notary\'s minutes and make all orders necessary to protect the rights of the parties for the period and on the conditions determined by the judge or clerk.

The clerk must give notice without delay to the interested persons of any order so made or judgment so rendered by sending them a copy.

1998, c. 51, s. 3; 2002, c. 7, s. 141.

863.11. The minutes of the probate of a holograph will or a will made in the presence of witnesses are deposited solely for publication purposes.

1998, c. 51, s. 3.

863.12. The original or a copy of the application, of the notice and of the notary\'s minutes must be notified to the interested persons in accordance with articles 146.1 and 146.2.

1998, c. 51, s. 3.

CHAPTER II

ALTERATION OF THE REGISTER OF CIVIL STATUS

864. Applications for the alteration of the register of civil status and for a change of name by way of judicial process and applications for the recognition of the validity of an act of civil status made outside Quebec or for the review of a decision of the registrar of civil status are introduced in the district of Quebec or before the court of the domicile of the applicant. They are notified to interested persons and to the registrar of civil status.

1965 (1st sess.), c. 80, a. 864; 1969, c. 80, s. 13; 1992, c. 57, s. 396.

864.1. An application for a change of name is, in the case of a minor, notified to the father, the mother, the tutor, where applicable, and to the minor child if he is 14 years of age or over.

1992, c. 57, s. 396.

864.2. An application for review of a decision of the registrar of civil status may be admitted only if it is presented within 30 days after receipt of the decision by the applicant.

The registrar of civil status transmits forthwith to the office of the court the record relating to the decision the review of which is applied for.

1992, c. 57, s. 396.

865. Applications made under this chapter may in no case be heard by the clerk.

1965 (1st sess.), c. 80, a. 865; 1992, c. 57, s. 396.

CHAPTER III

TUTORSHIP TO AN ABSENTEE AND DECLARATORY JUDGMENT OF DEATH

865.1. Applications for the institution of tutorship to an absentee are made before the court of the domicile of the person the establishment of whose absence is sought or, if such domicile cannot be determined, before the court of the person\'s last known residence, or before the court of the domicile of the applicant.

If the absentee has designated an administrator to his property and if the latter refuses or neglects to act or is unable to act, the application may be made before the court of the domicile of the administrator.

The application must be served on the Public Curator and, where applicable, on the person designated by the absentee to administer his property and on the absentee\'s spouse, if he has a spouse.

1969, c. 79, s. 4; 1992, c. 57, s. 397; 1999, c. 40, s. 56.

865.2. Applications concerning the amounts that it is expedient to allocate to the expenses of the marriage or civil union, to the maintenance of the family or to the payment of the obligation of support of the absentee and applications relating to the liquidation of the patrimonial rights of the married or civil union spouses are made before the court of the domicile of the absentee or of the applicant.

The application must be served on the Public Curator, on the tutor to the absentee and on the absentee\'s spouse, if he or she has a spouse.

1969, c. 79, s. 4; 1992, c. 57, s. 397; 2002, c. 6, s. 124.

865.3. Applications for a declaratory judgment of death are made before the court of the domicile of the person the establishment of whose death is sought.

If the person\'s domicile was not in Quebec, the application is made before the court of the domicile of the place of his death, if known, or, failing that, of the place of his disappearance.

1969, c. 79, s. 4; 1992, c. 57, s. 397.

865.4. The application must be served on the spouse of the person the establishment of whose death is sought, on his father and mother and on his children 14 years of age or over and, where applicable, on the person\'s insurer.

The judge may, of his own motion or on application, order collective service on any other person, according to the modalities he indicates.

1969, c. 79, s. 4; 1992, c. 57, s. 397.

865.5. Applications for annulment of a declaratory judgment of death and rectification of the register of civil status and applications relating to the cancellation of the mentions or entries made following the declaratory judgment of death are made before the court of the last domicile of the person who has returned and must be served on the interested parties.

1992, c. 57, s. 397.

865.6. Applications made under this chapter, except applications for the institution of tutorship to an absentee, may in no case be heard by the clerk.

1992, c. 57, s. 397.

CHAPTER IV

EXAMINATION AND COMPULSORY INSPECTION OF NOTARIAL DOCUMENTS

866. Notaries are bound, upon payment of their fees and dues, to give to the parties or to their heirs or legal representatives communication or copies of or extracts from deeds forming part of their official records or of the records of which they are transferees or depositaries. They are not, however, bound, without an order of the court, to give communication or copies of a revoked will or of a deed the publication of which is not required, unless the request is made by the testator himself or by a party to the deed, as the case may be.

1965 (1st sess.), c. 80, a. 866; 1992, c. 57, s. 398.

867. Any person to whom the notary has refused to give communication or copies of or extracts from a deed may, on motion served upon the notary, obtain from the judge an order for inspection, if he proves his right or his interest.

1965 (1st sess.), c. 80, a. 867.

868. The order of the judge fixes the day and hour when communication of the deed must be given, or the time within which the copy or extract must be furnished. It must be served upon the notary in good time.

1965 (1st sess.), c. 80, a. 868; 1999, c. 40, s. 56.

869. The notary must certify, on the copy or extract, that it is given upon the order of the judge, and he must mention the fact on the copy of the order which has been served upon him.

1965 (1st sess.), c. 80, a. 869.

CHAPTER V

REPLACEMENT AND RECONSTITUTION OF CERTAIN WRITINGS

870. When the minute or the original of an authentic deed or a public register has been lost, destroyed or carried away, and any authentic copy or extract exists, the court may permit or order that such copy or extract be deposited with such public officer as it designates, to take the place of the original.

The motion for such purpose may be made by the person who holds the copy or extract, or by an interested third party; it must be served on all interested parties.

1965 (1st sess.), c. 80, a. 870.

871. The applicant must pay the costs of the deposit; he must also furnish a new certified copy to the person who held the copy deposited, and indemnify him for all travelling and other expenses.

1965 (1st sess.), c. 80, a. 871.

871.1. Where an authentic act or public register cannot be replaced either because there is no copy or because a copy cannot be delivered, the public officer who held the act or register establishes a procedure for its reconstitution and proceeds with it.

Any interested person may, if the public officer delays establishing, or neglects to establish, a reconstitution procedure, ask the court to appoint a person to do so.

1992, c. 57, s. 400.

871.2. The court homologates the reconstituted writing upon ascertaining that the procedure followed was appropriate and that it permits a valid reconstitution.

The application for homologation is accompanied with the reconstituted writing, the reconstitution plan and an affidavit attesting that the procedure was followed.

The judge may, even of his own motion, order service on the interested persons, by public notice or otherwise; in the case of an authentic act, the application is served on the parties to the act, unless otherwise decided by the judge.

1992, c. 57, s. 400.

871.3. Reconstituted acts and registers stand in lieu of the original upon homologation of the reconstitution by the judge; they are filed with the public officer who held the original or his transferee.

Any interested person may contest the content of the reconstituted acts or registers or ask that corrections or additions be made.

1992, c. 57, s. 400.

871.4. Applications for the reconstitution of an authentic act or public register may in no case be heard by the clerk.

1992, c. 57, s. 400.

CHAPTER VI

TUTORSHIP COUNCIL

872. Applications relating to the composition and establishment of a tutorship council may be presented to the judge or clerk or to a notary; applications for the review of a decision of a tutorship council are made before the court of the domicile or residence of the minor or incapable person of full age.

1965 (1st sess.), c. 80, a. 872; 1975, c. 83, s. 56; 1979, c. 37, s. 34; 1992, c. 57, s. 401; 1998, c. 51, s. 4.

873. A meeting of relatives, persons connected by marriage or friends held for the establishment of a tutorship council is called by the clerk or by a notary.

The notice of meeting is notified to the persons who are required to be called for the establishment of the tutorship council and indicates the object, place, day and time of the meeting.

1965 (1st sess.), c. 80, a. 873; 1992, c. 57, s. 401.

874. The meeting is presided by a notary or the clerk.

1965 (1st sess.), c. 80, a. 874; 1992, c. 57, s. 401; 1998, c. 51, s. 5.

874.1. (Replaced).

1966, c. 21, s. 15; 1984, c. 47, s. 213; 1992, c. 57, s. 401.

875. The council notifies forthwith the tutor or curator, the Public Curator, the minor if 14 years of age or over or the person of full age under protective supervision of the name and address of the members and secretary of the council; it also notifies them of any change in that respect.

1965 (1st sess.), c. 80, a. 875; 1966, c. 21, s. 16; 1992, c. 57, s. 401.

876. Any service or notification intended for the council is validly made to the secretary responsible for drawing and keeping the minutes of the deliberations of the council.

1965 (1st sess.), c. 80, a. 876; 1966, c. 21, s. 17; 1992, c. 57, s. 401.

876.1. Where an application for the review of a decision of the tutorship council is notified to him, the secretary of the council transmits forthwith to the office of the court the minutes and record relating to the decision the review of which is applied for.

1966, c. 21, s. 18; 1992, c. 57, s. 401.

CHAPTER VI.1

TUTORSHIP TO MINORS

876.2. Where an application relating to the appointment or replacement of a tutor, a tutor ad hoc or a tutor to property is presented to a notary, the notary must serve the application on the minor, if the minor is 14 years of age or over, and notify the application to the persons mentioned in the first paragraph of article 226 of the Civil Code and call the latter persons to a meeting of relatives, persons connected by marriage or friends to establish tutorship to the minor and form the tutorship council. If the tutor, the tutor ad hoc or the tutor to property is being replaced, the notary must also notify the application to the Public Curator.

1998, c. 51, s. 6.

CHAPTER VII

PROTECTIVE SUPERVISION OF PERSONS OF FULL AGE AND HOMOLOGATION OF A MANDATE GIVEN BY A PERSON IN ANTICIPATION OF HIS INABILITY

SECTION I

PROTECTIVE SUPERVISION OF PERSONS OF FULL AGE

877. An application for the institution of protective supervision of a person of full age shall be brought before a judge or before the clerk of the district where the person of full age has his domicile or residence; it must set forth all the facts on which it is based and which the applicant will be required to prove.

The application must be served on the person of full age and on a reasonable member of his family; service on the person of full age must be made personally. If the application for institution of protective supervision is contested, it must be served on the persons who must be called to a meeting of relatives, persons connected by marriage and friends to form a tutorship council, so that they may attend the proceedings.

1965 (1st sess.), c. 80, a. 877; 1989, c. 54, s. 137; 1992, c. 57, s. 420; 2002, c. 7, s. 142.

877.0.1. Where an application for the institution or review of protective supervision of a person of full age is presented to a notary, the notary must prepare a declaration stating the facts on which the application for the institution or review of protective supervision of a person of full age is based, and must serve the declaration on the person of full age and notify the declaration to a reasonable member of the person\'s family, to the Public Curator and to one of the persons mentioned in article 15 of the Civil Code; the declaration must be accompanied with a notice of a meeting of relatives, persons connected by marriage or friends.

1998, c. 51, s. 7.

877.0.2. The applications referred to in articles 877 and 877.0.1 and any expert reports in support thereof must also be served on or notified to the Public Curator, who may take part in the proceedings, on his own initiative and without notice, as though he were a party thereto. If the Public Curator has not been served or notified, the clerk must suspend the proceedings until proof of service or notification is received at the office of the court.

2002, c. 7, s. 143.

877.1. If no person applies for the institution of protective supervision within 30 days of the filing of the recommendation of the Public Curator under section 14 of the Public Curator Act (chapter C-81), the clerk shall give notice thereof to the Public Curator. The latter shall then apply for the institution of protective supervision for the person of full age.

1971, c. 81, s. 47; 1989, c. 54, s. 138; 1992, c. 57, s. 420.

878. The person contemplated by an application for the institution of protective supervision must be examined by the judge, clerk or notary, unless it is manifestly unreasonable to hear his testimony by reason of his state of health.

The person may be examined by a judge or the clerk of the district where he resides, even if the application is made in another district. The examination shall be taken in writing and transmitted to the meeting of relatives, persons connected by marriage and friends. If no examination takes place, the judgment mentions that fact and indicates the reason why the person was not examined.

Where the application is presented to a notary, the notary may not delegate responsibility for the examination to another notary except to avoid expense of travel arising from the distance at which the person of full age is residing. If the person does not have a sufficient understanding of French or English and the notary does not speak the person\'s language, the notary may either hire an interpreter for the examination, or entrust the examination to a notary who speaks the person\'s language. In all cases, the notary who examined the person draws up the minutes of the examination, translated into French or English, if necessary. If no examination is conducted, the notary draws up minutes stating the reasons why no examination took place.

1965 (1st sess.), c. 80, a. 878; 1977, c. 73, s. 34; 1989, c. 54, s. 139; 1992, c. 57, s. 403, s. 420; 1998, c. 51, s. 8; 2002, c. 7, s. 144.

878.0.1. The notary must obtain the medical and psychosocial assessment, the examination of the person of full age and the other relevant documents and report thereon to the meeting of relatives, persons connected by marriage and friends.

1998, c. 51, s. 9.

878.1. The rules relating to the representation and hearing of a minor or incapable person of full age apply where, in a proceeding, the clerk or the judge ascertains that the application of these rules is necessary to ensure the safeguard of the rights of a person of full age incapable of caring for himself or of administering his property.

Upon ascertaining the necessity of providing representation to the incapable person of full age, the notary must relinquish the application, inform the interested persons and transfer the matter to the competent court, which is seized of the matter upon the deposit of the notary\'s minutes.

1989, c. 54, s. 140; 1992, c. 57, s. 404; 1998, c. 51, s. 10.

878.2. The documents supporting an application to the court for the institution of protective supervision must be filed in the office of the court not less than 10 days before the date scheduled for the hearing.

1989, c. 54, s. 140; 1998, c. 51, s. 11.

878.3. At any time before judgment, the judge or clerk may order, even of his own motion, the production of any additional evidence or the summoning of any person whose testimony he considers expedient.

1989, c. 54, s. 140; 1992, c. 57, s. 420.

879. A person in respect of whom an application for the institution of protective supervision is made may produce witnesses to contradict the evidence made by the applicant; all the depositions must be taken in accordance with the provisions of articles 324 and following of this Code.

1965 (1st sess.), c. 80, a. 879; 1989, c. 54, s. 141.

880. Where their advice is required, the persons who are required to be called for the establishment of the tutorship council are called by the notary to whom the application is presented or on an order of the judge or of the clerk and the meeting is presided by the judge or clerk or by a notary.

1965 (1st sess.), c. 80, a. 880; 1977, c. 73, s. 35; 1989, c. 54, s. 142; 1992, c. 57, s. 405; 1998, c. 51, s. 12.

881. The judge or clerk may, instead of granting the institution of the form of protective supervision applied for, determine another form of protective supervision if the circumstances so require.

1965 (1st sess.), c. 80, a. 881; 1989, c. 54, s. 143; 1992, c. 57, s. 420.

882. (Repealed).

1965 (1st sess.), c. 80, a. 882; 1989, c. 54, s. 144.

883. Every judgment relating to the institution, review or removal of protective supervision or ordering that a tutor or curator be replaced must be served on the person of full age.

1965 (1st sess.), c. 80, a. 883; 1989, c. 54, s. 145; 1992, c. 57, s. 406.

884. Protective supervision may be reviewed only if the formalities prescribed for the institution of protective supervision are observed.

1965 (1st sess.), c. 80, a. 884; 1989, c. 54, s. 146.

SECTION II

HOMOLOGATION OF MANDATE GIVEN BY A PERSON IN ANTICIPATION OF HIS INABILITY

884.1. An application for the homologation of a mandate given by a person in anticipation of his inability shall be submitted to a judge or to the clerk of the district where the mandator has his domicile or residence.

The application must be served on the mandator, on a reasonable member of his family and on the Public Curator; service of the application on the mandator must be made personally.

The judge or clerk may order that the application be served on the persons who would be qualified to intervene in the institution of protective supervision in respect of the mandator.

1989, c. 54, s. 147; 1992, c. 57, s. 408, s. 420.

884.2. The application for the homologation of the mandate must be accompanied with a medical and psychosocial assessment ascertaining the inability of the mandator and with a copy of the mandate.

1989, c. 54, s. 147.

884.3. The judge or clerk seized of the application for homologation shall ascertain the inability of the mandator, the existence of the mandate and the validity of the mandate where it has been made in the presence of witnesses.

1989, c. 54, s. 147; 1992, c. 57, s. 420.

884.4. Except as regards the communication of the examination, articles 878 to 878.3 apply to applications for the homologation of a mandate.

1989, c. 54, s. 147; 1992, c. 57, s. 409.

884.5. The revocation of a mandate cannot be obtained except by observing the prescribed formalities for the homologation of the mandate.

1989, c. 54, s. 147.

884.6. Any judgment ordering the homologation of a mandate must be served on the mandator; any judgment revoking a mandate must be served on the mandatary and, where applicable, on the mandator.

1989, c. 54, s. 147; 1992, c. 57, s. 410.

884.7. An application for the recording of the coming into effect of a mandate given in anticipation of the mandator\'s incapacity or of the declaration of the cessation of the effects or the revocation of such a mandate may also be presented to a notary.

The application is served by the notary on the mandator and, where applicable, notified to the mandatary and to the substitute mandatary designated by the mandator, the Public Curator and one of the persons mentioned in article 15 of the Civil Code.

1998, c. 51, s. 13; 2002, c. 7, s. 145.

884.8. The notary must obtain a medical and psychosocial assessment ascertaining the mandator\'s incapacity and the original or an authentic copy of the mandate. Where the mandate was given before witnesses, the existence and validity of the mandate are verified by the notary.

In all cases, the notary must, in accordance with article 878, examine the mandator and determine whether the mandator is capable or incapable of taking care of himself or herself or of administering his or her property. The minutes of the examination of the mandator are drawn up by the notary.

1998, c. 51, s. 13.

CHAPTER VIII

JUDICIAL AUTHORIZATIONS

885. Applications for authorization, empowerment or homologation provided for in the Civil Code or in this Book are introduced by way of a motion, in particular in the case of

(a) applications which by reason of the nature of the act or the quality of the applicant are subject by law to the authority of the court, so that it may authorize an act, approve or homologate a decision or an act, or establish a fact;

(b) applications for the appointment, designation or replacement of any person, including the administrator of the property of others, which the law requires to be made by the court or which are made by the court where there is no agreement between the interested parties;

(c) applications of the same nature in matters concerning tutorship to minors or protective supervision of persons of full age, in matters concerning succession and in matters concerning the administration of the property of others.

1965 (1st sess.), c. 80, a. 885; 1992, c. 57, s. 411; 1998, c. 51, s. 14.

886. Applications relating to tutorship to a minor and to his emancipation are notified to the Public Curator and to the minor, if 14 years of age or over.

Applications are accompanied with the advice of the tutorship council, where applicable.

1965 (1st sess.), c. 80, a. 886; 1992, c. 57, s. 411.

CHAPTER IX

PROBATE OF WILLS AND LETTERS OF VERIFICATION

SECTION I

PROBATE OF WILLS

887. Applications for the probate of a will are made before the court where the testator had his domicile or, if he had no domicile in Quebec, before the court of the district in which the testator died, or in that in which he left property.

1965 (1st sess.), c. 80, a. 887; 1992, c. 57, s. 411.

887.1. Where a holograph will or a will made in the presence of witnesses is probated by a notary, on the application of any interested person, the notary notifies to the known heirs and successors a notice of probate to which a copy of the will is attached. Any observations or representations which those persons wish to make must be made, orally or by any other means of communication, within 10 days after notification of the notice of probate.

1998, c. 51, s. 15.

888. Where it would be inconvenient or too expensive to call in all the known successors to a probate, the clerk may exempt the applicant from such requirement or determine the persons on or to whom service or notification will be made.

Where an application is presented to a notary, the clerk may exempt the notary from notifying all of the known successors if it would be impractical or too onerous to call all of them to the probate of the will, and may determine the persons who will be notified.

1965 (1st sess.), c. 80, a. 888; 1992, c. 57, s. 411; 1998, c. 51, s. 16.

889. The original of the will is examined by the clerk or by the notary. If the will is deposited with a notary, the clerk may order the notary to file the will at the office of the court or to deliver it to the notary designated by the clerk. However, a will deposited with a notary may not be probated by that notary or by a member of that notary\'s firm of notaries.

1965 (1st sess.), c. 80, a. 889; 1992, c. 57, s. 411; 1998, c. 51, s. 17.

890. The probated will is deposited in the office of the court. The clerk is bound to issue certified copies of the will, of the transcription of the proof made to support the application for probate and of the judgment granting the application to every interested person who so requires.

The will probated by a notary together with the minutes of the probate are kept in the records of the notary; the latter must issue certified copies of the will and of the minutes of the probate to any interested person who so requests.

The notary is also required to file a certified copy of the will and minutes at the office of the court of the district in which the testator was domiciled or, if the testator was not domiciled in Quebec, at the office of the court of the district in which the testator died or in which the testator left any property.

If the notary relinquishes the matter in accordance with article 863.8, the notary must file the original of the will in his or her possession together with the minutes at the office of the court.

1965 (1st sess.), c. 80, a. 890; 1992, c. 57, s. 411; 1998, c. 51, s. 18; 2002, c. 7, s. 146.

891. Notwithstanding the probate, a will may afterward, be contested, by action, by any interested person who did not oppose the application for probate or who, having opposed it, raises grounds which he was not then in a position to urge.

1965 (1st sess.), c. 80, a. 891; 1992, c. 57, s. 411.

SECTION II

LETTERS OF VERIFICATION

892. Every interested person may obtain from the clerk of the court of the district where the deceased had his domicile or from a notary letters of verification for use outside Quebec, to prove his quality of heir, legatee by particular title or liquidator of the succession.

1965 (1st sess.), c. 80, a. 892; 1992, c. 57, s. 411; 1998, c. 51, s. 19.

893. Letters of verification attest that the succession has opened; they certify moreover, in the case of an intestate succession, that the property has devolved to the designated persons in the proportions indicated and, in the case of a testamentary succession, that it has been proved that the will, of which a true copy is annexed, is the only will that the deceased made, or that it is the latest and that it revokes, in whole or in part, all previous wills.

In addition, the letters of verification identify the person acting as the liquidator of the succession.

1965 (1st sess.), c. 80, a. 893; 1992, c. 57, s. 411.

894. The application is served on the liquidator of the succession, if he is known, and on all the known heirs or legatees by particular title residing in Quebec.

Where an application is presented to a notary, the notary notifies the application to the liquidator of the succession, if that person is known, and to all of the known heirs or legatees by particular title residing in Quebec.

1965 (1st sess.), c. 80, a. 894; 1992, c. 57, s. 411; 1998, c. 51, s. 20.

895. Letters of verification may be revoked or corrected, on the instance of any interested person who did not oppose their being granted or who, if he did so oppose, raises grounds which he was not then in a position to urge.

The application is served on all persons on whom the original application was served or on their representatives and, if the application is based on the existence of a will, on every person to whom the property would devolve by the effect of the will.

1965 (1st sess.), c. 80, a. 895; 1992, c. 57, s. 411.

896. The clerk, under the seal of the court, issues copies of letters of verification to any person who so requires. The notary is also required to issue certified copies to any person who so requests. However, if the letters of verification are contested, no copy may be issued before the application is disposed of.

If the letters are only corrected by the judgment, the clerk issues new letters in replacement of the former ones.

1965 (1st sess.), c. 80, a. 896; 1992, c. 57, s. 411; 1998, c. 51, s. 21.

CHAPTER X

PROCEDURE GOVERNING THE SALE OF THE PROPERTY OF OTHERS

SECTION I

GENERAL PROVISIONS

897. The rules of this chapter apply where the law requires authorization from the court for the sale of property belonging to a minor, a person of full age under tutorship or curatorship or an absentee; they also apply where the law requires that an administrator of the property of others be authorized by a judge or the court before proceeding with the sale of property.

1965 (1st sess.), c. 80, a. 897; 1992, c. 57, s. 411.

898. The application for authorization to sell property sets out the grounds for the application and describes the property; it is accompanied with an appraisal and, where applicable, the advice of the tutorship council.

The application proposes a method of sale and the name of a person who may proceed with the sale, and specifies the reasons for which the sale ought to be made by agreement, by a call for tenders or by auction.

1965 (1st sess.), c. 80, a. 898; 1992, c. 57, s. 411.

899. A judgment authorizing a sale by way of a call for tenders indicates whether the call for tenders may be made by way of the newspapers or by invitation.

Sufficient information is included in the call for tenders to enable any interested person to submit an offer at the proper time and place.

The person proceeding with the sale is bound to accept the highest offer unless the conditions attached to it render it less advantageous than another lower offer, or unless the price offered is lower than the reserve price.

1965 (1st sess.), c. 80, a. 899; 1992, c. 57, s. 411.

900. An auction sale may take place only after publication of a notice of sale which mentions the charges and conditions of the sale that are determined by the judgment. The notice must be published at least 30 days before the date fixed for the sale or, in the case of a sale of movable property, at least 10 days before the date fixed for the sale.

Unless the judge or the clerk decides otherwise, articles 1757 to 1766 of the Civil Code apply to the auction sale. A sale under judicial authority is considered voluntary for the purposes of article 1758.

1965 (1st sess.), c. 80, a. 900; 1992, c. 57, s. 411; 1996, c. 5, s. 55; 2000, c. 42, s. 134.

901. A sale by agreement takes place on the conditions and according to the modalities fixed in the judgment authorizing it.

1965 (1st sess.), c. 80, a. 901; 1992, c. 57, s. 411.

902. If the judge or the clerk authorizes the sale, he determines the method, specifies the conditions and, if he considers it expedient, fixes a reserve price. He designates the person proposed by the applicant to proceed with the sale and prescribes the terms and conditions of his remuneration; he may, however, by a decision giving reasons therefor, make any appointment he considers appropriate. If he refuses to authorize the sale, he also gives the reasons for his decision.

1965 (1st sess.), c. 80, a. 902; 1992, c. 57, s. 411.

903. The judge or clerk fixes the reserve price at the market value or appraisal of the property. However, he may, on an application, reduce the reserve price if the circumstances or the market so justify.

In the case of securities that are not listed and traded on a recognized stock exchange, the reserve price must correspond to the appraisal made by an independent accountant.

1965 (1st sess.), c. 80, a. 903; 1992, c. 57, s. 411.

SECTION II

APPRAISAL

904. In the case of movable property, the application must be accompanied with an appraisal made by a competent person; where the circumstances so justify, the judge or clerk may exempt the applicant from furnishing an appraisal in respect of the property he determines.

1965 (1st sess.), c. 80, a. 904; 1986, c. 95, s. 65; 1992, c. 57, s. 411.

905. In the case of an immovable, the application is accompanied with the assessment of the immovable appearing on the assessment roll of the municipality, multiplied by the factor established for the roll by the Minister of Municipal Affairs, Regions and Land Occupancy under the Act respecting municipal taxation (chapter F-2.1).

The clerk or secretary-treasurer of a municipality is bound to disclose, wherever required, the assessment of the immovable and the factor used to obtain it to a person who applies for an authorization to sell.

1965 (1st sess.), c. 80, a. 905; 1992, c. 57, s. 411; 1999, c. 43, s. 13; 2003, c. 19, s. 250; 2005, c. 28, s. 196; 2009, c. 26, s. 109.

906. In the case of securities listed and traded on a recognized stock exchange, the application is accompanied with the security listing section of two newspapers published on the last Friday preceding the date of the application, or with a report from a brokerage firm.

In the case of over-the-counter securities, the application must be accompanied with attestations of the recognized value supplied by two brokerage firms. Each attestation states the list price of the security at the close of the market for the same date.

In the case of other securities, the appraisal is made by an independent accountant who determines their fair market value, unless the securities are subject to a shareholders\' agreement which includes an appraisal formula which applies to the sale of such securities.

1965 (1st sess.), c. 80, a. 906; 1992, c. 57, s. 411.

907. The judge or clerk may, even of his own motion, order that an appraisal be made by a chartered assessor or by another independent expert if he has reasons to believe that the appraisal of the property does not correspond to its value.

1965 (1st sess.), c. 80, a. 907; 1992, c. 57, s. 411.

SECTION III

REPORT AND DISTRIBUTION OF THE PROCEEDS OF THE SALE

908. Within 10 days of the sale, the person in charge of the sale files his report at the office of the court. He attaches to his report any supporting vouchers and, in particular, any previously obtained appraisal.

If securities listed and traded on a recognized stock exchange have been sold, the person in charge of the sale also attaches to his report the notice of execution of the brokerage firm in charge of the transactions.

1965 (1st sess.), c. 80, a. 908; 1992, c. 57, s. 411.

909. If the sale could not take place, or if the report is not filed 10 days before the time limit prescribed, the juge or the clerk may give new instructions.

1965 (1st sess.), c. 80, a. 909; 1992, c. 57, s. 411.

910. The proceeds of the sale are distributed among the persons entitled thereto, according to the instructions of the judge or the clerk, if any.

1965 (1st sess.), c. 80, a. 910; 1992, c. 57, s. 411; 1996, c. 5, s. 56.

SECTION IV

SPECIAL RULES GOVERNING SALES UNDER JUDICIAL AUTHORITY

910.1. The person designated by the court to proceed with a sale under judicial authority prepares a scheme of collocation in accordance with articles 712 to 723. The person must notify the proposed scheme to the debtor, to the creditors whose names appear on the statement certified by the registrar and to the municipality and school board concerned.

1996, c. 5, s. 57.

910.2. The designated person, on his own initiative or at the request of an interested person, may correct the proposed scheme of collocation upon determining that it contains an error. In that case, notification is repeated, and the time for contesting the proposed scheme begins to run anew from the date of such notification.

Any interested person may, by motion, contest the proposed scheme of collocation and ask that the court determine to whom the proceeds of the sale must be distributed. Such a remedy may be exercised within 15 days after the date of notification of the proposed scheme. The motion must be served on the person having prepared the proposed scheme, on the debtor and on every creditor whose name appears in the proposed scheme.

1996, c. 5, s. 57.

910.3. If there has been no contestation within 30 days after notification of the proposed scheme of collocation, the person having prepared the proposed scheme must distribute the proceeds of the sale as provided in the proposed scheme.

Until the distribution, the proceeds of the sale must be conserved as provided in article 1341 of the Civil Code.

1996, c. 5, s. 57.

911. (Replaced).

1965 (1st sess.), c. 80, a. 911; 1992, c. 57, s. 411.

912. (Replaced).

1965 (1st sess.), c. 80, a. 912; 1986, c. 95, s. 66; 1992, c. 57, s. 411.

913. (Replaced).

1965 (1st sess.), c. 80, a. 913; 1992, c. 57, s. 411.

914. (Replaced).

1965 (1st sess.), c. 80, a. 914; 1992, c. 57, s. 411.

915. (Replaced).

1965 (1st sess.), c. 80, a. 915; 1992, c. 57, s. 411.

916. (Replaced).

1965 (1st sess.), c. 80, a. 916; 1992, c. 57, s. 411.

917. (Replaced).

1965 (1st sess.), c. 80, a. 917; 1986, c. 95, s. 67; 1992, c. 57, s. 411.

918. (Replaced).

1965 (1st sess.), c. 80, a. 918; 1992, c. 57, s. 411.

919. (Replaced).

1965 (1st sess.), c. 80, a. 919; 1992, c. 57, s. 411.

920. (Replaced).

1965 (1st sess.), c. 80, a. 920; 1992, c. 57, s. 411.

921. (Replaced).

1965 (1st sess.), c. 80, a. 921; 1992, c. 57, s. 411.

922. (Replaced).

1965 (1st sess.), c. 80, a. 922; 1992, c. 57, s. 411.

923. (Replaced).

1965 (1st sess.), c. 80, a. 923; 1977, c. 5, s. 14; 1992, c. 57, s. 411.

924. (Replaced).

1965 (1st sess.), c. 80, a. 924; 1992, c. 57, s. 411.

925. (Replaced).

1965 (1st sess.), c. 80, a. 925; 1992, c. 57, s. 411.

926. (Replaced).

1965 (1st sess.), c. 80, a. 926; 1992, c. 57, s. 411.

927. (Replaced).

1965 (1st sess.), c. 80, a. 927; 1974, c. 70, s. 470; 1992, c. 57, s. 411.

928. (Replaced).

1965 (1st sess.), c. 80, a. 928; 1992, c. 57, s. 411.

929. (Replaced).

1965 (1st sess.), c. 80, a. 929; 1992, c. 57, s. 411.

930. (Replaced).

1965 (1st sess.), c. 80, a. 930; 1992, c. 57, s. 411.

931. (Replaced).

1965 (1st sess.), c. 80, a. 931; 1992, c. 57, s. 411.

932. (Replaced).

1965 (1st sess.), c. 80, a. 932; 1992, c. 57, s. 411.

933. (Replaced).

1965 (1st sess.), c. 80, a. 933; 1992, c. 57, s. 411.

934. (Replaced).

1965 (1st sess.), c. 80, a. 934; 1992, c. 57, s. 411.

935. (Replaced).

1965 (1st sess.), c. 80, a. 935; 1992, c. 57, s. 411.

936. (Replaced).

1965 (1st sess.), c. 80, a. 936; 1992, c. 57, s. 411.

937. (Replaced).

1965 (1st sess.), c. 80, a. 937; 1992, c. 57, s. 411.

938. (Replaced).

1965 (1st sess.), c. 80, a. 938; 1992, c. 57, s. 411.

939. (Replaced).

1965 (1st sess.), c. 80, a. 939; 1992, c. 57, s. 411.