The law does not require anyone to make a will. However, having a will has many advantages. A will sorts out in advance some of the problems that can arise 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 death.

For example, wills allow people to chose who will inherit their property and who will act as liquidator for their estate, also called a succession. The liquidator is the person who will distribute the property, pay the debts, etc. Also, in a will a parent can designate someone to act as tutor (a kind of guardian) for a child under 18 should both parents die.

Any adult of sound mind 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.

It is important to remember that a will is a legal document that a person must create on her own. Therefore, a couple should not draw up one document in which they designate each other as the person to inherit his or her property. Each one of them must make his or her own will.

Most people think 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, etc.

In fact, your will can contain many other provisions to 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 those who inherit
  
• name a tutor (guardian) for your minor child in case you and the other parent die at the same time, etc.

Your will can also include instructions on a funeral or memorial service, whether you wish to be cremated or buried, etc. However, often the contents of your will are only known after a funeral or other arrangement has taken place, It is therefore a good idea to make sure your loved ones are aware of your wishes without having to consult your will. You can, for example, include them in a document that can be read immediately after your death.

In Quebec, a will must be one of the three types recognized by law. The three types are listed below and discussed in more detail in the other questions in this Infosheet:

• notarial wills
  
• holograph wills
  
• wills made in the presence of witnesses

To be valid, each type of will must meet certain conditions. Choosing one type of will over another depends a lot on a person’s needs and resources at the time the will is made.

If these conditions are met, all three types of wills are equally valid when it comes to making sure your wishes are respected.

A notarial will is written by a notary. Since it is made by a public official who follows the formalities required by law, it is harder to contest the validity of this type of will.

A notary can also act as an advisor and help the testator(person making the will) designate who will inherit her property while taking into consideration various factors (taxes, support obligations for children or a spouse, etc.).

Another advantage of notarial wills is that, unlike the other two types of wills, notarial wills do not have to be probated (validated) after the testator’s death. What’s more, since notaries must keep the original of all of the wills they write, it is easy to find notarial wills. However, since they are prepared by a professional – the notary- this kind of will is 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 the will is made must be indicated. A notarial will is made before a notary in the presence of an adult witness who is not a beneficiary of the will. In exceptional circumstances, two witnesses are required, for example, when the testator 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. (The notarial will of a blind person is read in the presence of two witnesses.)

It is important to remember that a testator does not have to reveal the contents of her will to anyone except the notary and, where required, the witnesses.

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 type of will discussed below.

A holograph will is the simplest type of will. 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. (Disabled persons may write using their mouths or feet when necessary.)

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. However, mentioning the place could be useful if the will was written abroad. Also, indicating the date can be very helpful to the liquidator if you leave more than one will behind. This is because the old will remains valid, but any provisions of the old will that are incompatible with the most recent will have to be ignored.

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

As the name suggests, a will made in the presence of witnesses requires the participation of two witnesses at the same time. The witnesses confirm that it is the testator’s will and the testator’s signature and sign the will in the presence of the testator.

Wills made in the presence of witnesses used to be called “wills made under the English form.”

A will prepared by a lawyer is considered to be a will made in the presence of two witnesses.

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 who is present and follows the instructions of the testator.

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 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 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) 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 request made to a court or a notary to confirm that the will is the last one and that it meets the legal requirements for it to be valid. This confirmation does not prevent future challenges regarding the contents of the will. The probate of a will establishes that the will meets the conditions for 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 (request) must be presented to the Superior Court in the judicial district (geographic region) of the deceased’s place of residence. People entitled to inherit must be informed of the motion and can intervene when it is presented in court. Many people ask a notary or a lawyer to draft the motion, but other people write and present the motion themselves.

Probate by a notary

Another option is to have a notary probate the will. (This does not “transform” the will into a notarial will!). A notary must inform those entitled to inherit about the probate of the will. The probate of a will by a notary has the same effect as a probate by the Superior Court. However, a notary cannot probate a will that is contested, for example, if someone claims 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.

When someone dies, people close to the deceased will have to look through her papers and safety-deposit boxes and are obliged to do a search in the Registre des dispositions testamentaires et des mandats du Québec (the Register), a service set up by the Chambre des notaries (a organization representing notaries) and the Québec Bar (an organization representing lawyers).

It is important to remember that only notarial wills and wills made by lawyers are automatically registered with 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 this website.

The Civil Code of Quebec (a law) specifies who will inherit your property if you die without a will. This is called “legal succession.” It all depends on the relatives the deceased leaves 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 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 can be carried out will be respected. As a general rule, a testator’s last wishes must make sense and not violate public order. (A violation of public order refers to behavior or decisions society considers unacceptable.)

First of all, a clause in a will cannot be enforced if the beneficiary refuses the 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 piece of property cannot be respected if that property was destroyed during the testator’s lifetime.

Of course, a testator cannot give something that does not belong to her. Furthermore, if a gift is subject to an impossible or 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 personal life of her loved ones: for example, a testator cannot say that in order to inherit, a widow must agree never to remarry or that a man must agree to leave his spouse.

Lastly, in order to protect the testator from being taken advantage of, certain gifts made through wills are automatically considered invalid. A few examples include:

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

A notarial will can cost roughly $250 to $1,000. It all depends on the complexity of your personal and financial situation.

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

But once a notarial will is made, there are no other fees because it does not have to be probated. (See the question “I’ve heard that some wills must be “probated” after death. What does this mean?”)

You don’t have to pay anything when you write your own holograph will or your will in the presence of witnesses, 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 a will in the presence of witnesses for you.

These two types of wills must be probated. Unless your liquidator has in-depth legal knowledge and can 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 approximately $1,500 to have the will probated by a court or a notary. Those fees will be taken out of your estate.