Wills

Published by Denis Jutras the 15 December 2021

Why make a will?

Making a will allows you to plan ahead for many of the decisions that need to be made after your death.

For example:

Who will be your heirs?
How will your property be distributed among your heirs?
Who will be the liquidator?
Who will look after your children?

Without a will, the rules laid down in the law will apply. For example, according to the law:

Your ex-spouse from whom you are not divorced remains an heir and will be entitled to a share of your property.
However, your common-law partner will not be considered an heir and will not be entitled to any of your property.

Who can make a will?

To make a will, you need:

be 18 years old; and
Understand the nature and consequences of your will.

But beware! A person under 18 years of age can make a will for his or her objects of little value.

A minor who is fully emancipated by the court also has the right to make a will. And there is nothing to prevent him from changing it later!

Can my spouse and I make one will for both of us?

No. Each person must make his or her own will.

In Quebec, any person of full age or fully emancipated is free to bequeath their property to whomever they wish. They are also free to make changes to their will at any time if they are still lucid.

If a couple signed the same will together, the consent of both spouses would be required to change it, which is contrary to the principle of individual freedom to bequeath one's property to whomever one wishes.

There is, however, one exception: a clause in a notarised marriage contract (see next question).

If I have signed a marriage contract which contains the clause "to the last living person the property", can I still make a will?

Yes, this clause in a notarised marriage contract allows you to leave all your assets to your husband in the event of his death.

But making a will can be a good idea!

It allows you to include clauses that are not in your marriage contract, such as giving property to particular people, appointing a guardian for your minor children, specifying how the liquidator should handle your children's inheritance, etc.

Not sure whether you should make a will? Consult a notary, who will tell you whether your marriage contract is the right one for your situation.

Please note! Sometimes, in order to bequeath certain property by will, you need the written consent of your spouse. This is the case, for example, if you have provided for certain assets to be given to your spouse in your marriage contract and this gift is "irrevocable".

What does a will contain?

For the average person, a will only serves to divide up a person's property after his or her death: the house to the spouse, the car to the oldest child, the lawnmower to the brother-in-law, etc.

This is the case, but your will can include many other things that will guide your loved ones when you are gone. For example, it can:

appoint the person responsible for settling your estate (the liquidator) and his or her replacement;
extend the liquidator's powers beyond those provided for by law; (For example, if you do not give your liquidator the power to sell, he or she will need to obtain permission from the heirs).
provide for the manner in which the liquidator will be remunerated;
create legal mechanisms (e.g. a trust) to minimise the tax impact on heirs;
appoint a guardian for your minor child.

It is also possible to specify your wishes and instructions for your funeral in your will. However, as most of the time your will will be opened after your funeral, it is best to talk to your loved ones while you are still alive or to enter into a pre-arrangement contract with a funeral service company.

What wills are recognized in Quebec?

Three types of wills are recognised in Quebec:

the notarial will;
the holographic will;
the will before witnesses.

To be valid, each of them must meet certain conditions.

What type of will should I choose?

It all depends on your needs and resources at the time you decide to make your will.

But no matter which type of will you choose, if the conditions of validity are respected, they all have the same value in terms of respecting your wishes.

What is a notarial will?

As its name indicates, a notarial will is a will prepared by a notary.

The notary draws up a will that respects the conditions of validity imposed by the law and that specifies your wishes, taking into account your family and financial situation.

These are the main conditions:

The notarial will must be drawn up in French or English.
The place and date must be mentioned.
It must be signed by you in the presence of the notary and a witness (or two witnesses in special cases).
In general, you do not have to worry about finding a witness as the notary will take care of this.
The will must then be read to you so that you can declare that the document contains the expression of your last wishes. This reading can be done in the presence of the witness or, if you prefer, in the presence of the notary only.

Note that a lawyer can draw up a will, but it will be a witnessed will (see the question "What is a witnessed will?").

What are the advantages and disadvantages of a notarial will?

Advantages of a notarial will:

Is more difficult to contest, since the notary verifies your identity and consent, and ensures that all the conditions of validity imposed by law are met.
Allows you to benefit from the advice of a legal professional.
Does not have to be verified (or validated) by the court or a notary after your death.
Is easy to trace after your death since the notary keeps the original will and registersit in the Register of Testamentary Dispositions of the Chambre des notaires du Québec.

Disadvantage of the notarial will:

You will have to pay the notary's professional fees.

What is a witnessed will?

As its name indicates, a witnessed will involves the signing of the will before two witnesses at the same time.

Any adult may act as a witness. However, it is impossible to be both beneficiary of the will and witness.

Witnesses must:

attest (confirm) that this is your will and your signature; and
sign the will after you.

A will prepared by a lawyer is a will made in front of two witnesses.

The will before witnesses may be handwritten, typed or written on a computer. If it is written on a computer, only a printed and signed version has legal value.

If the will is typed or typed on a computer, you must make sure that your initials (or signature) are on every page, as well as those of the witnesses. This is also true if the will is handwritten by someone other than you.

You do not have to read the contents of your will in front of the witnesses. But if you are unable to read your will yourself (for example, because you have significant vision problems), the document must be read to you by one of the witnesses in the presence of the other witness.

What are the advantages and disadvantages of a witnessed will?

Advantages of the will before witnesses:

Its greatest advantage is undoubtedly its cost, which may be non-existent if you do not use a lawyer. However, if you instruct a lawyer to draw up your will, you will have to pay his or her fees.
You can ask the lawyer to register the will with the Registre des dispositions testamentaires of the Barreau du Québec. It will then be possible and easy to trace it.

Disadvantages of a witnessed will:

This type of will must be verified (validated) after the death, which entails costs and delays.
It may be lost, destroyed or damaged.
By doing this yourself, you do not necessarily benefit from the advice of a lawyer, which is often very useful in making you think of situations you have not thought of.For example, if you are making a new will, you should think about cancelling the old one.
Problems of interpretation. Indeed, jurists have the reflex to think about interpretation problems and to draft the content of the will accordingly.For example, if a will states that "the personal property of the deceased will be bequeathed to his favourite niece", one may wonder about the meaning of the word "personal property" and who, among all the nieces of the deceased, is his favourite.

What is a holographic will?

It is a fully written and signed will by yourself.

This is the simplest type of will since it must comply with only two conditions to be valid:

be handwritten without the use of computers or other technical means (people with disabilities could write with their mouths or feet); and
Wear your signature.

Although this type of will does not require a witness, it is advisable to tell your relatives where you intend to keep it. A safe place is generally preferable to the bottom of a drawer. However, do not put your will in a safety deposit box! Your heirs will need the original of your will to open it after your death.

Moreover, even if the mention of the place and date of drafting the will is not obligatory, the will must be drawn up in writing:

the place may be useful if the will was made outside Quebec.
the date will be of great help to the executor if you leave more than one will. Indeed, if you leave several wills and none of them has been cancelled, the different wills remain valid. The entire content of each will must therefore be taken into account. If there are inconsistencies between parts of the different wills, the most recent will will be used! To avoid confusion, when you make a new will, make sure you include all your wishes and cancel any other wills by writing the following in them: "This will revokes in its entirety any will previously made.

What are the advantages and disadvantages of a holographic will?

Advantages of the holographic will:

It can be done anywhere and at any time.
It costs nothing; you do not have to pay any professional fees.

Disadvantages of the holographic will:

This type of will must be verified (validated) after the death, which entails costs and delays for the estate.
It may be lost, destroyed or damaged.
By doing this yourself, you do not necessarily benefit from the advice of a lawyer, which is often very useful in making you think of situations you have not thought of. For example, if you are making a new will, you should think about cancelling the old one.
Problems of interpretation. For example, if a will states that "the personal property of the deceased shall be bequeathed to his favourite niece", one may wonder about the meaning of the word "personal property" and who, among all the nieces of the deceased, is his favourite.

I have heard that some wills need to be "probated" (validated) after death. What does this mean?

The law requires that holographic wills and wills made in the presence of witnesses be probated (validated) by the court or a notary on the death of the testator, even if a lawyer has drafted it. Only notarial wills do not need to be probated.

The probate is a procedure presented to the court or to a notary, which aims to confirm that it is indeed the last will and that it is valid as regards its form. This confirmation does not prevent a possible legal challenge to the provisions of the will. In fact, the purpose of the probate is to establish compliance with the conditions of validity of the will and not its content.

There are two ways for heirs to have a will probated:

Verification by the courtThisis usually done through an application to the Superior Court of the judicial district of the deceased. Many people choose to have a notary or lawyer draft the application, while others decide to draft and present the application to the court themselves.
The notaryis obliged to inform the heirs of the procedure. However, it should be noted that a notary cannot verify a contested will, for example if someone claims that it is a false will. To find out more, read our article: Making an unnotarized will official: the probate.

Will everything I write in my will have to be respected?

In principle, yes.

In fact, only your possible and feasible last wishes will be respected. As a general rule, your wishes may be limited for reasons of common sense or public policy.

For example:

A clause in a will cannot be enforced if the legatee refuses the legacy (gift by will) or has already died before the testator.
Nor can property that no longer exists or has been destroyed be handed over. In such a case, it should be noted that the legatee will not receive any monetary compensation.
Of course, we cannot bequeath something that does not belong to us either.
In addition, if a bequest has an illegal or impossible condition, the condition is cancelled.For example, "I leave $20,000 to Josette on the condition that she does not remarry" or "I leave $5,000 to Peter on the condition that he runs the marathon in half an hour."

Finally, to protect the testator against abuse, legacies made to certain persons will automatically be considered void.

For example:

a bequest made to the notary (or his immediate family) who prepared the testator's will;
a legacy made to the witness present when the testator signed the will;
a bequest made to a member of the testator's host family if it is made at the time when he or she was living there;
a legacy made to an employee of a health or social services institution if it is made at the time the testator was receiving care or services there.

How much does a will cost?

How much does a notarial will cost?

For the testator: usually between $200 and $500 (or more depending on the situation) for drafting, signing, keeping the original, providing a true copy and registering the document.

For example, a tenant who owns only a car and a few RRSPs and wants to leave everything to his spouse will fare better than an owner of several businesses and second homes who wants to create trusts for the benefit of his many children and grandchildren.

For the heirs: As the notarial will does not have to be probated following the death, the heirs will not have to pay anything to have it recognised. See the question on the probate of a will.

How much does a will that you prepare yourself (holographic or witnessed) cost?

For the testator:

Option 1He draws up his will himself, without recourse to the advice of a lawyer. The design of the will should then cost nothing.
Option 2He completes his own will using a will kit (form), without seeking advice from a legal professional. He will have to pay for the will kit.
Option 3Option 3: If he wishes to obtain advice from a lawyer before drawing up the will, or entrusts him with the task of drawing up the will, he will have to pay his fees. Again, a lawyer's fee will vary depending on the complexity of the situation and the hourly rate. It is reasonable to expect a bill comparable to that of a notary.

For the heirs: As these are two types of wills that must be probated following death, the heirs will have to pay a fee of approximately $1,500 from the estate to have the will probated by the court or a notary. It should also be noted that the process of probating a will can take several weeks. See the question on probating a will.