The law does not require people to make a will. However, having a will has many advantages. A will can sort out in advance some of the problems that come up after someone dies. Apart from marriage contracts and insurance policies, a will is a rare opportunity for people to choose for themselves what will happen to their property after their death.

Through a will, a person can, for example, indicate who will inherit her property and who will liquidate her succession (that is, the person who will distribute the property, pay the debts, close the accounts, etc.). A parent can also designate a tutor for a child, who is a minor, in a will.

Any adult having the necessary mental capacity can make a will. A fully emancipated minor (see Emancipation of a minor) can also make a will. Once a will is made, it can be changed at a later date.

The testator (the person who makes a will) has almost unlimited freedom. In Quebec, unlike in some European countries, it is possible to completely disinherit one’s family, except for obligations that must be respected such as support. However, the support that a child or a spouse can ask for from the succession of a deceased person is limited by law.

It is important to remember that a will is a juridical act that a person must make on her own. Therefore, a couple should not draw up one document in which the spouses designate each other as the heirs. Each one of them must make their own will!

Most people think that a will is only used to divide up property after death: the house to the spouse, the car to eldest child, the lawnmower to the brother-in-law…

Nevertheless, your will can contain many other provisions that will guide your loved ones when you are no longer there. For example, it can:

• name the person who will be in charge of settling your succession (the liquidator) as well as his replacement;
  
• extend the liquidator’s powers beyond those automatically given to him by the law;
  
• specify how the liquidator will be paid;
  
• create legal mechanisms (for example a trust) to minimise the tax implications for the heirs;
  
• name a tutor for your minor child in case you and the other parent die at the same time, etc.

Any wishes regarding your funeral are generally best left out of your will because, often, your will will only be read a few days after your funeral. In any case, it is a good idea to make sure that your loved ones are aware of your wishes, without having to consult your will.

In Quebec, a will must be one of the three types of wills recognized by law (each type is described in the questions that follow):

• Notarial wills;
  
• Holograph wills;
  
• Wills made in the presence of witnesses.

Certain conditions must be met in order for each type of will to be valid. Choosing one type of will over another depends a lot on a person’s needs and resources at the time when the will is being made.

Regardless of the type of will chosen, if the conditions for validity and recognition are met, the three types of wills equally respect the testator’s wishes.

A notarial will is written by a notary. Since it is made by a public official who respects the formalities, it is harder to contest the validity of this type of will. A notary can also act as an advisor and help the testator bequeath her property (leave the property for someone by will), taking into account many factors (taxes, support obligations, etc.).

Another advantage of notarial wills is that, unlike the other two types of wills, notarial wills do not have to be probated (validated) by a court after the testator’s death. What’s more, since notaries must keep the original of all of the wills they write, it is really easy to find notarial wills. However, given that it is necessary to use the services of a professional, notarial wills are a lot more expensive.

This type of will must meet certain conditions in order to be valid. First of all, in Quebec, a notarial will must be written either in French or in English. The place and the date must be indicated. The notarial will is made before a notary in the presence of a witness (an adult who is not a beneficiary of the will). In exceptional circumstances, two witnesses are required; for example when the testator (the person who is making a will) is blind or incapable of signing.

The will must then be read to the testator so that she can be sure that the document is a faithful expression of her last wishes. The reading can take place in the presence of the witness, or if preferred, in the presence of the notary only. It is important to remember that a testator does not have to reveal the content of her will to anyone.

Finally, the testator, the notary, and the witness all sign the document!

A lawyer can also write a will. A will written by a lawyer is a will made in the presence of two witnesses.

A holograph will is the simplest type of will. In order to be valid, a holograph will must only satisfy two conditions: it must be handwritten (not on a computer or typed up) by the testator, and it must bear her signature.

Even if this type of will does not require any witnesses, it is obviously a good idea to tell your loved ones where you plan to keep it. A safe place like a safety deposit box is preferable to the bottom of a drawer!

Indicating where (place) and when (date) the will was written is not necessary, although the mention of the place could be useful if the will was written abroad. However, indicating the date can be very helpful to the liquidator if you leave more than one will behind. This is because any provisions of the old will that are incompatible with the most recent will will have to be ignored… But the old will remains valid too!

To save your loved ones from having to interpret what is “compatible” and “incompatible” between the two wills, you can simply revoke (cancel) the older will by including a sentence in the new will like “this will revokes my last will, made on March 22, 2001”.

As the name suggests, a will made in the presence of witnesses (also called "witness will") requires the participation of two witnesses at the same time. The witnesses, attesting (recognizing) that it is the testator’s will and the testator’s signature, sign the will in the presence of the testator. A will prepared by a lawyer is a will made in the presence of two witnesses. Wills made in the presence of witnesses used to be called “wills made under the English form.”

Here is an example of a will made in the presence of witnesses:

I, Rhonda Campbell, bequeath all my property to my mother Lisa.

Signed on August 26, 2005 by Rhonda Campbell and recognized by her as being her will in the simultaneous presence of the two undersigned witnesses who have signed in her presence and at her request.

Signed: Rhonda Campbell

Maya Gupta
Jonathan Kim

A will made in the presence of witnesses can be handwritten or typed up on a typewriter or a computer. If it is written on a computer, only a printed and signed version has legal value. The will can be written and signed by the testator herself or by another person authorized by the testator. This person does not have to be one of the witnesses.

If the testator does not write her will herself, she must ensure that both she and her witnesses initial or sign each page of the will. Every person, who has reached the age of majority and is capable of taking care of himself and his property, including relatives and friends, can act as a witness. However, it is impossible to be both the beneficiary of a will and a witness to it.

If it is impossible for the testator to read the will by herself, because, for example, she is blind, the document must be read to her by one of the witnesses. In all other cases, the testator does not have to reveal the contents of her will to anyone.

The law requires holograph wills and wills made in the presence of witnesses to be probated (validated or confirmed) by a court or a notary following the testator’s death, even if a lawyer drew up the will. A notarial will is the only type of will that does not have to be probated.

Probate is a procedure presented to a court clerk or a notary, who seek to confirm that the will is the right one and that its form is valid. This confirmation does not prevent future judicial contestations related to the will’s content. The probate of a will only seeks to establish that the will meets the conditions related to its validity; it does not seek to establish the will’s content.

There are two options available for heirs to probate a will:

Probate by a court

A motion must be presented, most often before a clerk of the Superior Court in the judicial district of the deceased. As a general rule, the heirs and the successors (people who are likely to inherit) will be informed of the motion and can intervene when it is presented at court. Many people ask a notary or a lawyer to draft the motion, but other people write and present the motion themselves to the court.

Probate by a notary

Another option is to have a notary probate the will (remember that this does not “transform” the will into a notarial will!). A notary must inform the heirs about the probate of the will. The probate of a will by a notary has the same effect as a probate by a clerk or judge of the Superior Court. However, a notary cannot probate a will that is contested; for example, if half of the heirs consider it legitimate, while the other half claim that it is a fake will.

It is always a good idea for a testator (the person who makes a will) to tell her loved ones about where she keeps her will.

Otherwise, a person can look through the papers and safety-deposit boxes of the deceased person and ask the Registre des dispositions testamentaires et des mandats du Québec (the Register), a service provided by the Chambre des notaries and the Barreau du Québec.

It is important to remember that only notarial wills are automatically registered with the registre des dispositions testamentaires de la Chambre des notaires and accessible through the Register. Holograph wills and wills made in the presence of witnesses are usually not registered with the Register unless the testator asked a lawyer or a notary to do so.

To find out how to consult the Register, you can visit its website.

The Civil Code of Quebec specifies who will inherit your property if you die without a will. This is called “legal succession.” It all depends on which relatives the deceased will be leaving behind.

For example, if a person has children and a married or civil union spouse, the children and the spouse are the only ones who inherit: one third of the property is inherited by the spouse and two thirds by the children (all of the children are included, even those from different relationships). If there was no married or civil union spouse, everything would go to the children. In all other situations, there is a well established hierarchy between all other possible heirs: parents, brothers and sisters, cousins, etc. It is important to remember that de facto (common-law) spouses and in-laws are excluded from legal succession.

A table showing the division of property in a legal succession is available on the website of the Ministry of Justice of Quebec.

Not exactly. Only those last wishes that are possible and feasible will be respected. As a general rule, a testator’s last wishes must make sense and not violate public order.

First of all, a clause in a will cannot be enforced if the beneficiary refuses the legacy (gift made under the will) or if the beneficiary has died before the testator. Likewise, the testator’s last wishes with respect to a particular property cannot be followed if that property was destroyed during the testator’s lifetime.

Of course, a testator cannot bequeath something that does not belong to him. However, she can ask an heir to acquire a specific property for a particular legatee. Furthermore, if a legacy is subject to an impossible or an illegal condition, that condition is cancelled. For example, if I bequeath $5,000 to Josette on condition that “she gets rid of my neighbour’s annoying dog,” or that “she runs a marathon in a half-an-hour,” she can get the $5,000 without having to meet these conditions.

Also, a testator cannot control the innermost personal life of his loved ones: for example, a testator cannot say that in order to inherit, a widow must agree never to remarry or a man must agree to leave his spouse. However, a testator is allowed to make a legacy (gift made under the will) containing an incentive which does not control someone’s personal life: for example, “I bequeath $2,500 to Samuel if he finishes college.”

Lastly, in order to protect the testator from being taken advantage of, legacies made to certain persons in position of authority are automatically considered null (invalid). A few examples include:

• a legacy made to the notary (or to the notary’s close family) who receives the will;
  
• a legacy made to a witness who was present when the testator signed the will;
  
• a legacy made to a member of a foster family if it is made while the testator is still living with the foster family;
  
• a legacy made to an employee of a health or social services establishment if it is made when the testator is receiving care or services in that establishment.

Either the date of the will or the relevant circumstances determine when a legacy was made.

A notarial will can cost between $250 and $1250. It all depends on the complexity of your personal and financial situation.

For example, a tenant who only owns a car and a few RRSPs and who wants to leave them all to his spouse will pay less than the owner of several businesses and several country houses who wants to create trusts for all of his children and grandchildren.

You don’t have to pay anything when you are writing , on your own, your holograph will or your witness will, unless you decide to consult a professional for legal advice before writing the will. You will also have to pay fees if you decide to ask a professional to write your witness will for you.

The amount of fees that you will have to pay depends on the complexity of your situation and on the rates of the professional chosen. You can expect to pay anywhere from $500 to over $3000 for a few hours of work.

These two types of wills must be probated. Unless your liquidator has in depth legal knowledge that allows him to file a motion to probate the will on his own, he is likely to use the services of a legal professional. So, upon your death, your liquidator will have to pay fees of approximately $1,500, that he will take from your succession, in order to probate your will before a court. It would cost about the same to have the will probated in front of a notary.