Planning your estate is the best way to ensure that your assets go to the people or organisations of your choice after your death. Here's what you need to know about holograph wills, notarial wills and wills made in the presence of witnesses.
The first two things to do to protect your loved ones are to draw up a will and to protect yourself by having a notary draw up a mandate for incapacity in the event that illness or an accident deprives you of your faculties.
If you die intestate, i.e. without a will, all your heirs will have to act as liquidators of your estate (or appoint a third party to do so), which may lead to family problems and even legal disputes.
Without a will, the Civil Code of Quebec will determine your heirs, which can lead to injustices. Did you know, for example, that a common-law spouse is not recognized as a legal heir? Think about it: if you die without having defined your last wishes, the person who shared your life for so many years may not be entitled to anything.
>> Also read: All our articles about wills and succession
Holographic wills
The word "holographic" refers to a will which is entirely written and signed by the testator. Be aware that it is best to date and title your will ("My Last Will and Testament", "My Will", etc.), so that your family knows that it is your most recent will and not just a draft or a reminder.
Good to know: a will recorded in video or audio form is generally not valid as it is not written and does not bear the signature of the testator.
On the other hand, a person who cannot write with his or her hands may still write a will in holographic form if it is entirely made and signed by him or her, for example with his or her mouth or feet (Sources: Commentaires du ministre de la Justice, Code civil du Québec, article 726).
Benefits
Simple, fast and free of charge.
No witnesses are required.
Disadvantages
Cannot be written by technical means (computer, typewriter, etc.) or on a pre-printed form.
Must be verified by a special clerk or notary on death, which entails additional costs and delays.
Can be destroyed or lost.
Not suitable for complex estates.
May have omissions or gaps.
Is more likely to be challenged in court.
How much does it cost?
No charge at the time of writing. However, there is a significant delay and additional legal costs (over $1,000) to verify the will after death.
The testament notarized
A notarial will is prepared by a notary according to your wishes and your family and financial situation.
This will must be drawn up by a notary and bear the date and place of signature. It is signed by the testator and the notary in the presence of at least one witness of full age. It is an official document.
The notary ensures that all the formalities required by law are complied with. In particular, he reads your will to you and explains its content. You must then declare before the civil law notary and in the presence of at least one adult witness that this will contains the expression of your last wishes.
In 2017-2018, there were 215,576 registrations of wills in the Register of Testamentary Dispositions of the Chambre des notaires du Québec. (Source: Annual Report of the Chambre des notaires du Québec 2017-2018).
Benefits
The notary keeps the original of the will. It is therefore possible to obtain true copies, for example if your copy is lost or destroyed.
You benefit from the advice of a legal professional.
The notary draws up the will according to the law in force, which reduces the risk of problems of interpretation of your will on your death.
The will is less likely to be challenged in court.
An entry is made in the Register of Testamentary Dispositions of the Chambre des notaires du Québec, which ensures that your will will be found upon your death.
There is no charge or procedure for probating the will on death.
Disadvantage
You must pay the notary's fees.
How much does it cost
Approximately $300 for a simple will. The price may vary depending on your needs and the complexity of your situation. In addition, expect to pay a fee of about $10 for registering the will in the Register of Testamentary Dispositions of the Chambre des notaires du Québec.
The will before witnesses
There are several ways to make a witnessed will. You can write it yourself by hand or print it out from your computer, or you can write it from a form bought in a shop or on the Internet, or you can have it drawn up by another person (a lawyer, for example).
You must sign the will in the presence of two witnesses of full age to whom you are not leaving anything. If you leave a legacy to one of the witnesses to your will, the legacy will be void. It must be initialled ('initialed') on each page by you and the witnesses, unless you write it yourself by hand.
It is best to choose witnesses who are fairly young and fit, as at least one of them will have to be able to provide a sworn statement when you die for the will to be probated. You must declare in their presence that it is your will and you must sign it together.
The witnessed will drawn up by a lawyer
Benefits
The lawyer may keep an original of the will, at your request, for a fee.
You benefit from the advice of a legal professional.
The lawyer drafts the will according to the law in force, which reduces the risk of problems of interpretation of your will at your death.
If an original of your will is kept by the lawyer, a mention of your will is registered in the Register of Wills of the Barreau du Québec, which ensures that it will be found at your death.
Disadvantages
Must be verified by a special clerk or notary upon death, which entails additional costs and delays.
If the lawyer does not keep an original copy of your will, no mention will be made of it in the Register of Wills of the Barreau du Québec, which does not guarantee that it will be found upon your death
You must pay a fee to the lawyer to draw up your will. If this will is lost or destroyed and it was the only copy, you will have to make a new will to make sure your wishes are carried out when you die.
How much does it cost
About $300 for a simple will. The price may be higher depending on your needs and the complexity of your situation. In addition, expect a $10 fee for registering the will in the Quebec Bar's Register of Wills. There are also significant delays and additional legal fees (more than $1,000) to verify the will after death.
Witnessed wills drawn up by hand or by technical means (e.g. computer)
Advantage
Simple, fast and free of charge.
Disadvantages
Must be verified by a special clerk or notary on death, which entails additional costs and delays.
Can be destroyed or lost.
May have omissions or gaps.
Is more likely to be challenged in court.
How much does it cost
No charge at the time of drafting. However, there is a significant amount of time and additional legal fees (over $1,000) to verify the will after death.
Witnessed will on a pre-printed form purchased in a shop or on the Internet
Benefits
Simple and fast.
Serves as a guide for drafting.
Disadvantages
Must be verified by a special clerk or notary on death, which entails additional costs and delays.
Can be destroyed or lost.
Not suitable for complex estates.
May have omissions or gaps.
Is more likely to be challenged in court.
You must purchase the form.
Standard content, perhaps less suited to your needs and objectives.
You must ensure that the form complies with the rules of validity of the will in Quebec, which are different from those in other Canadian provinces and other countries.
How much does it cost?
The price varies depending on the form purchased. In addition, there are significant delays and additional legal fees (over $1,000) to verify the will after death.
About the pre-printed form purchased in a shop or on the Internet
The model will sold in shops or on the Internet is a form that you must fill in. The form is used to guide you through the process of making a will and to help you think of things you may have forgotten. Sometimes it even comes with a guide to help you understand each element. However, this can give you a false sense of comfort. This is because a form often has standard content that may not be appropriate to your situation and needs.
Be careful! First, make sure that the form respects the rules of validity of the will in Quebec. A form designed for Ontario, the United States or France, for example, does not take into account the laws of Quebec. This could cause problems for your liquidator and your family during the settlement of your estate, especially when the will is probated.
Only a legal professional can guarantee that your will is complete, complies with Quebec law, is adapted to your needs, and is drafted clearly and precisely to limit problems of interpretation. Indeed, it is common to find problems of interpretation when the will has not been made with the advice of a notary or a lawyer. Here are some examples.
- "I leave my personal property to my daughter Lea and everything else to my son Lucas." Is the bank account in which you have $40 "personal property"? If your daughter predeceases you, can your son take the rest of your property?
- I bequeath all my money to my friend George So-and-so and the rest of my property to my wife. What is "all your money"? Does this include your RRSPs, investments, bank accounts and stocks?
- I leave all my property to my favourite niece. If you have more than one niece, it is likely that upon your death each one will claim to be your favourite!
The form you complete must be signed in the presence of two witnesses of legal age, and the testator and the witnesses must initial each page. It must therefore comply with the characteristics of a witnessed will to be valid. When you die, one of the witnesses must be able to provide an affidavit for the will to be verified.
https://www.protegez-vous.ca/nouvelles/affaires-et-societe/types-testament-quebec