1. Introduction
Lamont v Estate of Louis Fournier et al[1] is a helpful case to refresh one’s memory about the various issues that can arise in a will challenge. The case also involves the issue of delusions on the part of the testator. In many respects it is a very sad case.
2. Facts
The testator, Louis Fournier (‘Louis’), held a PhD in French literature from Harvard University and was a member of the faculty at the Université de Moncton until 2003. He had a long-standing history of mental illness. In 2013 he came to believe that his neighbours were subjecting him to electronic harassment, and in 2014 he developed delusional beliefs that he was a ‘targeted individual’ at the hands of an unknown organization that was using electromagnetic waves to harm him.
Louis had been married but was divorced in 1994 and lived by himself in Moncton. He has one child, Marie Anna Fournier (‘Anna’), who lives in Winnipeg. Louis has not seen her since 2010 but spoke lovingly of her to others. Louis also has four brothers, François, Pierre, Jean, and Alain. Pierre and François live in the Moncton area, and while they did not visit Louis regularly, they did maintain regular contact with him by email and telephone.
Louis made a formal will prepared by a solicitor in 1993. It contained specific legacies and bequests in favour a number of friends and associations and left the residue to Anna. Between 2004 and 2019, Louis made six additional testamentary instruments. In one, made in 2009, Louis named his friend, Renée Ruest, his executor.
Louis met the applicant, Bair Mary Lamont (‘Mary’) of Quadra Island, British Columbia, through an online community that supported individuals who identified themselves as targeted persons and victims of electronic harassment. By 2017 Louis and Mary maintained regular telephone and email contact and developed a romantic relationship. They became engaged in March 2019, but they never met in person and Mary refused to send him a recent photograph. Indeed, Mary rejected his proposal to move to Quadra Island to live with her. They did discuss Mary’s financial difficulties, and between 2017 and 2021 Louis gave her a total of $50,000.
In July 2019 Louis made a final testamentary codicil. It was in his own handwriting, and it was uncontested that it satisfied the formal requirements of a holograph will. The codicil revoked all prior testamentary instruments and left Louis’ entire estate to Mary.
While Louis disclosed his beliefs, his relationship with Mary, and the existence of the 2019 codicil to his family members, none of them raised concerns with him about Mary or the 2019 codicil during his lifetime. They only came to realise the severity and consequences of his mental health issues after he died. Louis died alone in his bed on Christmas Day in 2021. Mary did not travel to Moncton to manage his affairs and refused to attend his funeral.
Louis’ friend and executor, Renée cleaned Louis’ residence and found the testamentary documents he had made. She came to realize that Louis had been suffering from serious mental health issues in the final years of his life, so she questioned Louis’ testamentary capacity and became increasingly suspicious of Mary. Consequently, in October 2022 she brought an application for advice and directions from the court about the validity of his various testamentary documents and the suspicious circumstances surrounding the making of them, which raised issues of testamentary capacity and undue influence.
In February 2024 Mary brought an application for an order removing Renée as executor and permitting herself to apply for letters of administration with the 2019 Codicil attached. In March 2024 the respondents Nicole Fournier Sylvester (‘Nicole’, Louis’ niece) and Pierre (collectively the ‘Fournier respondents’) were granted permission to participate in the proceedings. They sought an order declaring the 2019 codicil invalid for lack of testamentary capacity or in the alternative on the ground that Mary had exerted undue influence over Louis. The applications were transferred to the Court of King’s Bench and were heard concurrently.
The applications judge found that Louis lacked testamentary capacity to execute the 2019 codicil. In the alternative she held that the bequest to Mary was the product of her undue influence. In coming to this conclusion, she considered the evidence of Dr Marquis, a psychiatrist who treated Louis for a number of years and the evidence of Dr Leroux, Louis’ personal physician. The validity of the testamentary documents made before the 2019 Codicil was not challenged in the proceedings. The applications judge held that the presumption of testamentary capacity with respect to those instruments was maintained and she confirmed their validity.
Mary appealed and raised a large number of grounds in support of her appeal. Justice LaVigne wrote the judgment for the Court of Appeal.
3. Analysis and Judgment
3.1 Suspicious circumstances
With reference to the leading case, Vout v Hay,[2] as well as Estate of Alvin De Witt[3] Justice LaVigne noted that suspicious circumstances may arise from any well-grounded basis for concern, which may derive from (1) the circumstances surrounding the preparation of the will; (2) circumstances casting doubt on the testator’s capacity; or (3) circumstances suggesting that the testator’s will was overborne by coercion or fraud. The applications judge referred especially to Louis’ emails to Pierre at the time of the execution of the 2019 Codicil and found that the suspicious circumstances raised in the case called into question Louis’ capacity when he executed the Codicil. Justice LaVigne held that these circumstances were firmly supported by the evidence and that the applications judge had not made any legal or factual error on this point.
3.2 Testamentary capacity
Justice La Vigne noted rightly that the presence of suspicious circumstances rebutted the presumption of testamentary capacity and cast the burden on Mary to prove that Louis had capacity when he executed the codicil. She referred inter alia to Stekar v Wilcox[4] and its discussion of the test for testamentary capacity in the leading case, Banks v Goodfellow,[5] especially as regards the existence of delusions. She also quoted the following excerpt from Skinner v Farquharson:[6]
Delusion is insanity where one persistently believes supposed facts (which have no real existence except in his perverted imagination) against all evidence and probability and conducts himself however logically upon the assumption of their existence.
The applications judge rightly noted that the mere existence of delusions is insufficient. It must be established that the delusions had a material impact on the contents of the testamentary document. She found that by 2019 Louis’ life had been fully overtaken by electronic harassment delusions and that while he may have been functional in other areas of his life, were it not for the delusions he would not have disinherited Anna. Justice LaVigne found no fault with the reasons and conclusions of the applications judge and agreed that Mary had not satisfied the burden of showing that Louis had the necessary testamentary capacity.
3.3 Undue influence
The applications judge noted that testamentary undue influence must amount to coercion, in the sense that the testator’s free will is overpowered.[7] She found, based on the evidence of the interactions between Louis and Mary, and considering Louis’ delusional state, that Mary’s advice to Louis regarding targeted individuals induced him to make the 2019 Codicil. Thus, she concluded that the bequest to Mary was the product of undue influence. Although there was no direct evidence of coercion, in reaching her conclusion the applications judge relied on circumstantial evidence from which she drew a legal inference of undue influence. Justice LaVigne held that the appellant has not demonstrated any legal error by the applications judge’s reasons, nort any palpable and overriding error in her findings or inferences. Accordingly, she dismissed this ground of appeal.
3.4 Standing and costs for the Fournier respondents
The appellant claimed that the applications judge erred in granting standing and awarded costs to the Fournier respondents who, she maintained, are ‘busybody litigants’. While in Ontario an applicant must demonstrate a financial interest in the estate,[8] in New Brunswick she need show only that she has an interest in the property of the estate.[9] Justice LaVigne held that while neither Nicole nor Pierre had a financial interest in the estate, they believed that Louis lacked testamentary capacity or was subjected to undue influence and that therefore it was important to challenge the validity of the Codicil. Accordingly Justice LaVigne was satisfied that the Fournier respondents had a genuine and legitimate interest in the outcome of the proceedings. Since there were reasonable grounds to question the validity of the Codicil, she held that it serves the public interest that those who raise the reasonable grounds should not be penalized and should be awarded costs.
Justice LaVigne also rejected Mary’s argument that the applications judge effective gave the executor the status of a neutral party and that this created a reasonable apprehension of bias because, as she alleged, this would prefer the executor’s evidence over her own. Justice LaVigne dismissed the argument for lack of merit.
3.5 Costs granted to Renée
The appellant also argued that Renée acted in a deceitful and improper way in her capacity as executor and should be required to reimburse a significant portion of the costs awarded to her by the applications judge. Justice LaVigne noted that the applications judge was well-placed to assess the executor’s conduct and awarded solicitor-client costs accordingly. She found no basis to interfere with the applications judge’s exercise of her discretion and dismissed this ground of appeal.
3.6 Striking or disallowing evidence in the applicant’s affidavits
Justice LaVigne found that the applications judge did not err in rejecting the evidence in question and dismissed this ground of appeal.
3.7 Applicant’s motion to introduce fresh evidence
Justice LaVigne was satisfied that, having regard to the entirety of the appeal, the fresh evidence could not reasonably have affected the result in the case. Accordingly, she dismissed the motion.
Justice LaVigne concluded that Mary had not established any basis for appellate intervention and therefore dismissed the appeal and the motion to admit fresh evidence. She also ordered Mary to pay costs in the amount of $3,500 to the estate.
—
[1] 2025 NBCA 79.
[2] [1995] 2 SCR 876, 1995 CarswellOnt 186, para 25 (‘Vout’).
[3] 2004 NBPC 377, affirmed 2005 NBCA 69.
[4] 2017 ONCA 1010.
[5] (1870), LR 5 QB 549.
[6] (1902), 32 SCR 58, para 76.
[7] Citing, inter alia, Vout, footnote 2, supra, para 29; Meade and the Estate of Donald Patrick Meade v Cornish, 2023 NBCA, para 38.
[8] Rules of Civil Procedure, RRO 1990, Reg 194, Rule 75.06.
[9] Probate Court Act, SNG 1982, c P-17.1, s 45; Probate Rules, NB Reg 84-9.
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Written by: Albert Oosterhoff
Posted on: March 24, 2026
Categories: Commentary
1. Introduction
Lamont v Estate of Louis Fournier et al[1] is a helpful case to refresh one’s memory about the various issues that can arise in a will challenge. The case also involves the issue of delusions on the part of the testator. In many respects it is a very sad case.
2. Facts
The testator, Louis Fournier (‘Louis’), held a PhD in French literature from Harvard University and was a member of the faculty at the Université de Moncton until 2003. He had a long-standing history of mental illness. In 2013 he came to believe that his neighbours were subjecting him to electronic harassment, and in 2014 he developed delusional beliefs that he was a ‘targeted individual’ at the hands of an unknown organization that was using electromagnetic waves to harm him.
Louis had been married but was divorced in 1994 and lived by himself in Moncton. He has one child, Marie Anna Fournier (‘Anna’), who lives in Winnipeg. Louis has not seen her since 2010 but spoke lovingly of her to others. Louis also has four brothers, François, Pierre, Jean, and Alain. Pierre and François live in the Moncton area, and while they did not visit Louis regularly, they did maintain regular contact with him by email and telephone.
Louis made a formal will prepared by a solicitor in 1993. It contained specific legacies and bequests in favour a number of friends and associations and left the residue to Anna. Between 2004 and 2019, Louis made six additional testamentary instruments. In one, made in 2009, Louis named his friend, Renée Ruest, his executor.
Louis met the applicant, Bair Mary Lamont (‘Mary’) of Quadra Island, British Columbia, through an online community that supported individuals who identified themselves as targeted persons and victims of electronic harassment. By 2017 Louis and Mary maintained regular telephone and email contact and developed a romantic relationship. They became engaged in March 2019, but they never met in person and Mary refused to send him a recent photograph. Indeed, Mary rejected his proposal to move to Quadra Island to live with her. They did discuss Mary’s financial difficulties, and between 2017 and 2021 Louis gave her a total of $50,000.
In July 2019 Louis made a final testamentary codicil. It was in his own handwriting, and it was uncontested that it satisfied the formal requirements of a holograph will. The codicil revoked all prior testamentary instruments and left Louis’ entire estate to Mary.
While Louis disclosed his beliefs, his relationship with Mary, and the existence of the 2019 codicil to his family members, none of them raised concerns with him about Mary or the 2019 codicil during his lifetime. They only came to realise the severity and consequences of his mental health issues after he died. Louis died alone in his bed on Christmas Day in 2021. Mary did not travel to Moncton to manage his affairs and refused to attend his funeral.
Louis’ friend and executor, Renée cleaned Louis’ residence and found the testamentary documents he had made. She came to realize that Louis had been suffering from serious mental health issues in the final years of his life, so she questioned Louis’ testamentary capacity and became increasingly suspicious of Mary. Consequently, in October 2022 she brought an application for advice and directions from the court about the validity of his various testamentary documents and the suspicious circumstances surrounding the making of them, which raised issues of testamentary capacity and undue influence.
In February 2024 Mary brought an application for an order removing Renée as executor and permitting herself to apply for letters of administration with the 2019 Codicil attached. In March 2024 the respondents Nicole Fournier Sylvester (‘Nicole’, Louis’ niece) and Pierre (collectively the ‘Fournier respondents’) were granted permission to participate in the proceedings. They sought an order declaring the 2019 codicil invalid for lack of testamentary capacity or in the alternative on the ground that Mary had exerted undue influence over Louis. The applications were transferred to the Court of King’s Bench and were heard concurrently.
The applications judge found that Louis lacked testamentary capacity to execute the 2019 codicil. In the alternative she held that the bequest to Mary was the product of her undue influence. In coming to this conclusion, she considered the evidence of Dr Marquis, a psychiatrist who treated Louis for a number of years and the evidence of Dr Leroux, Louis’ personal physician. The validity of the testamentary documents made before the 2019 Codicil was not challenged in the proceedings. The applications judge held that the presumption of testamentary capacity with respect to those instruments was maintained and she confirmed their validity.
Mary appealed and raised a large number of grounds in support of her appeal. Justice LaVigne wrote the judgment for the Court of Appeal.
3. Analysis and Judgment
3.1 Suspicious circumstances
With reference to the leading case, Vout v Hay,[2] as well as Estate of Alvin De Witt[3] Justice LaVigne noted that suspicious circumstances may arise from any well-grounded basis for concern, which may derive from (1) the circumstances surrounding the preparation of the will; (2) circumstances casting doubt on the testator’s capacity; or (3) circumstances suggesting that the testator’s will was overborne by coercion or fraud. The applications judge referred especially to Louis’ emails to Pierre at the time of the execution of the 2019 Codicil and found that the suspicious circumstances raised in the case called into question Louis’ capacity when he executed the Codicil. Justice LaVigne held that these circumstances were firmly supported by the evidence and that the applications judge had not made any legal or factual error on this point.
3.2 Testamentary capacity
Justice La Vigne noted rightly that the presence of suspicious circumstances rebutted the presumption of testamentary capacity and cast the burden on Mary to prove that Louis had capacity when he executed the codicil. She referred inter alia to Stekar v Wilcox[4] and its discussion of the test for testamentary capacity in the leading case, Banks v Goodfellow,[5] especially as regards the existence of delusions. She also quoted the following excerpt from Skinner v Farquharson:[6]
Delusion is insanity where one persistently believes supposed facts (which have no real existence except in his perverted imagination) against all evidence and probability and conducts himself however logically upon the assumption of their existence.
The applications judge rightly noted that the mere existence of delusions is insufficient. It must be established that the delusions had a material impact on the contents of the testamentary document. She found that by 2019 Louis’ life had been fully overtaken by electronic harassment delusions and that while he may have been functional in other areas of his life, were it not for the delusions he would not have disinherited Anna. Justice LaVigne found no fault with the reasons and conclusions of the applications judge and agreed that Mary had not satisfied the burden of showing that Louis had the necessary testamentary capacity.
3.3 Undue influence
The applications judge noted that testamentary undue influence must amount to coercion, in the sense that the testator’s free will is overpowered.[7] She found, based on the evidence of the interactions between Louis and Mary, and considering Louis’ delusional state, that Mary’s advice to Louis regarding targeted individuals induced him to make the 2019 Codicil. Thus, she concluded that the bequest to Mary was the product of undue influence. Although there was no direct evidence of coercion, in reaching her conclusion the applications judge relied on circumstantial evidence from which she drew a legal inference of undue influence. Justice LaVigne held that the appellant has not demonstrated any legal error by the applications judge’s reasons, nort any palpable and overriding error in her findings or inferences. Accordingly, she dismissed this ground of appeal.
3.4 Standing and costs for the Fournier respondents
The appellant claimed that the applications judge erred in granting standing and awarded costs to the Fournier respondents who, she maintained, are ‘busybody litigants’. While in Ontario an applicant must demonstrate a financial interest in the estate,[8] in New Brunswick she need show only that she has an interest in the property of the estate.[9] Justice LaVigne held that while neither Nicole nor Pierre had a financial interest in the estate, they believed that Louis lacked testamentary capacity or was subjected to undue influence and that therefore it was important to challenge the validity of the Codicil. Accordingly Justice LaVigne was satisfied that the Fournier respondents had a genuine and legitimate interest in the outcome of the proceedings. Since there were reasonable grounds to question the validity of the Codicil, she held that it serves the public interest that those who raise the reasonable grounds should not be penalized and should be awarded costs.
Justice LaVigne also rejected Mary’s argument that the applications judge effective gave the executor the status of a neutral party and that this created a reasonable apprehension of bias because, as she alleged, this would prefer the executor’s evidence over her own. Justice LaVigne dismissed the argument for lack of merit.
3.5 Costs granted to Renée
The appellant also argued that Renée acted in a deceitful and improper way in her capacity as executor and should be required to reimburse a significant portion of the costs awarded to her by the applications judge. Justice LaVigne noted that the applications judge was well-placed to assess the executor’s conduct and awarded solicitor-client costs accordingly. She found no basis to interfere with the applications judge’s exercise of her discretion and dismissed this ground of appeal.
3.6 Striking or disallowing evidence in the applicant’s affidavits
Justice LaVigne found that the applications judge did not err in rejecting the evidence in question and dismissed this ground of appeal.
3.7 Applicant’s motion to introduce fresh evidence
Justice LaVigne was satisfied that, having regard to the entirety of the appeal, the fresh evidence could not reasonably have affected the result in the case. Accordingly, she dismissed the motion.
Justice LaVigne concluded that Mary had not established any basis for appellate intervention and therefore dismissed the appeal and the motion to admit fresh evidence. She also ordered Mary to pay costs in the amount of $3,500 to the estate.
—
[1] 2025 NBCA 79.
[2] [1995] 2 SCR 876, 1995 CarswellOnt 186, para 25 (‘Vout’).
[3] 2004 NBPC 377, affirmed 2005 NBCA 69.
[4] 2017 ONCA 1010.
[5] (1870), LR 5 QB 549.
[6] (1902), 32 SCR 58, para 76.
[7] Citing, inter alia, Vout, footnote 2, supra, para 29; Meade and the Estate of Donald Patrick Meade v Cornish, 2023 NBCA, para 38.
[8] Rules of Civil Procedure, RRO 1990, Reg 194, Rule 75.06.
[9] Probate Court Act, SNG 1982, c P-17.1, s 45; Probate Rules, NB Reg 84-9.
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