L'émergence des limites à la liberté de tester en droit québécois : étude socio-juridique de la production du droit

Formerly the freedom of wiIling in Quebec was considered to be "unlimited", which meant that its scope was such that the deceased could refrain from bequeathing any property at aIl to his or her spouse or children. Following the introduction of legal measures on compensatory allowance and, more particularly, provisions concerning the family patrimony and the survival of the obligation of support, the scope of this freedom is no longer as alI-inclusive as it once was. Although Quebeckers remain free to determine via their last wiIls and testaments to whom they wish to bequeath their property, henceforth their margin of freedom is limited by the preceding legislative changes which entitle the surviving spouse and immediate family of the deceased to claim to certain amounts from the succession, whatever the last will of the deceased may have been. As such, the patrimony upon which the testator now exercises freedom has ceased necessarily to be that which the deceased had control over during his or her life and marriage. It is thus no longer possible to refer to Quebeckers' "unlimited freedom" of wiIling. The emergence of limitations in testamentary freedom in the Civil Code invites us to question the reasons and foundations for this shift in the freedom of willing and, incidentaIly, the more general issue of the reform and evolution offamily law in society. To address these issues, this thesis is founded upon a socio-Iegal approach according to which it is essential to seek out the basis of the evolution of law from within the social representations valued in a society at a given time in its history. Beginning from the postulate that it is the changes in social representations that help to explain the transition from a social rationality to a legal rationality, this thesis illustrates by what actors, foIlowing which lines of logic and to what end these limitations in the freedom of wiIling were introduced into Quebec law. Such an approach to the evolution of the law on the basis of social representations thereby helps "to enlighten" the commonly expressed idea whereby law is a mirror image of mores. Based upon an analysis of social representations recorded and retrieved in the discourse of different social actors, including briefs tabled before the National Assembly and proceedings in the Journal of Debates, parliamentary committees, as weIl as decided cases, doctrine and statutory texts, this thesis seeks to demonstrate how the changes which led to the restriction in testamentary freedom in Quebec extend far beyond perceptions evoking family and patrimony as is generaIly claimed. The introduction of limitations in the freedom of willing in the Civil Code seems rather to result from a compromise between the evolution in social representations regarding family relationships and the evolution in social representations regarding law, more specifically with regard to the functions of law in society and the conditions underlying the law's systemic coherence. Lastly the analysis of this evolution makes it possible to observe that while the law governing successions was for a long time a "component" of property law, henceforth it has specifically gravitated to being a "component" of family law.

Keyphrases: Testament, Last will and testament, Freedom of willing, Family, Patrimony, Functions of law, Coherence of law, Social representations, Evolution of law