Wills

This article explains the three types of wills recognized in Quebec and the formalities required for each type.

Why should I make a will?

A will lets you make decisions ahead of time, decisions that will be carried out after your death:

• Who will inherit from you?
• How will your property be divided among these people?
• Who will be your liquidator (person who will distribute your property, formerly called an executor)?
• Who will take care of your children, if you have children?

If you die without a will, the rules in the law will apply. Here are some examples:

• If you never formally divorced your ex-spouse, that person has a right to inherit and will get part of your property.
• If you have a partner but are not married, that person will not have a right to anything.

Who can make a will?

To make a will, a person must be

• 18 years old, and
• of sound mind, which means the person understands the nature of the document and its consequences.

However, a person under 18 can make a will for property that has little or no value.

Also, a person under 18 who has been fully emancipated by a court can also make a will.

Can a couple make one will for both people?

No. Each person must make a will.

In Quebec, people 18 or older, and people under 18 who have been emancipated, are free to give their property to whoever they want. They can also make changes to their wills at any time, as long as they are of sound mind.

If a couple made one will together, both would have to agree to any changes. This goes against the principle that people are free to give their property to whoever they wish.

But there is one exception to this rule: a statement in a marriage contract made by a notary. See the next question.

I signed a marriage contract that says the “property goes to the last surviving person”. Should I make a will?

Yes. This kind of statement in a marriage contract made by a notary lets you leave your property to your spouse when you die.

But it’s a good idea to make a will.

In a will, you can include statements that you don’t have in a marriage contract. For example, you can say in a will that you are giving your property to someone in particular, you can name someone to take care of any children under 18 and you can say how your liquidator must manage the inheritance of your children. (A liquidator is the person named in a will to distribute your property. Liquidators are sometimes known as executors.)

You’re not sure whether you should make a will? Consult a notary. A notary can tell you if your marriage contract reflects your true wishes given your situation.

Important! Sometimes your spouse must agree in writing to let you leave some kinds of property in your will. This is the case, for example, if you have left your spouse some kinds of property in a marriage contract and it is “irrevocable,” which means it can’t be changed.

What’s in a 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.

This is true, but your will can also contain a lot of other directions for your loved ones when you are no longer there. For example, it can:

• name a “liquidator” – the person who will settle your estate – and a replacement for this person
• extend the liquidator’s powers beyond those automatically given by the law. For example, if you don’t give the liquidator the power to sell, he will have to get permission from the heirs.
• specify how the liquidator will be paid
• create legal mechanisms, such as a trust, to minimize taxes owing on your estate
• name a tutor (guardian) for your children under 18

Your will can also include instructions about a funeral. But since what your will says is usually only known after a funeral, it is a good idea to make sure your loved ones know about your wishes ahead of time, or to make a contract for a pre-arranged funeral.

What kinds of wills are recognized in Quebec?

Three types are recognized:

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

To be valid, each type of will must follow certain rules.

What kind should you choose? It depends on your needs and finances at the time the will is made.

Whichever type you choose, if the rules are followed, all three are equal when it comes to making sure your wishes are respected.

What is a notarial will?

As the name suggests, a notarial will is written by a notary.

Notaries can write a will that follows the legal rules, that reflects your wishes and takes into account your family and financial situation.

Here are the main rules:

• A notarial will must be written in English or French.
• The will must indicate the place and date it was made.
• You must sign it before the notary and a witness. Sometimes two witnesses are necessary.

You don’t usually have to worry about getting a witness because the notary takes care of this.

• The will must then be read to you so that you can declare that is reflects your last wishes. The reading can take place in the presence of the witness, or if you prefer, in the presence of the notary only.

Note that a lawyer can also create a will, but it will then be a different type: a will “made in front of witnesses”.

What are the advantages and disadvantages of notarial wills?

Advantages:

• They are harder to challenge. This is because a notary has made sure of your identity and that you agreed to the will. The notary also makes sure the will follows all the legal rules.
• You get the benefit of the advice of a legal professional.
• They don’t have to be probated after you die. Probated means to be made official. This is done in court or by a notary.
• They are easy to find after your death because the notary keeps the original and files it in the Registre des dispositions testamentaires de la Chambre des notaires du Québec (a registry kept by the notaries association of Quebec).

Disadvantages:

• You have to pay a fee to a notary.

What is a will made in the presence of witnesses?

As the name suggests, this kind of will must be signed in front of two witnesses together at the same time.

Anyone 18 or older can be a witness. But a person who will benefit from the will cannot be a witness.

The witnesses must:

• confirm that it is your will and your signature, and
• sign the will after you sign.

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

This kind of will can be handwritten, typed on a typewriter or written with a computer. If it is written on a computer, only a printed and signed version has legal value.

If you don’t write your will yourself, you must make sure that you and your witnesses initial or sign each page of the will.

You don’t have to read the will in front of the witnesses. But if you can’t read it yourself, for example, because you have vision problems, the will must be read to you by one of the witnesses in the presence of the other.

What are the advantages and disadvantages of a will make in front of witnesses?

Advantages:

• The biggest advantage is the cost. This kind of will can be free if you don’t use a lawyer. But if you do use a lawyer, there will be fees.
• You can ask a lawyer to register the will in the Registre des dispositions testamentaires du Barreau du Québec (bar of Quebec registry). It will then be easier to trace. 

Disadvantages:

• This type of will must be probated after you die. Probate means to make official. This involves costs and takes time.
• They can be lost, destroyed or damaged.
• By creating this kind of will yourself, you don’t get legal advice. Advice can help you think about situations you haven’t anticipated.

For example: if you write a second will, you have to think about cancelling the first one.

• Problems of interpretation: legal professionals can anticipate these problems and write a will to avoid them.

For example: if a will says that “all the personal belongings of the deceased will go to her favourite niece”, the meaning of “personal belongings” and who is the “favourite niece” are unclear.

What is a holograph will?

A holograph must be entirely written by you and signed by you.

This is the simplest kind of will, because there are only two requirements:

• They must be written by hand, and not on a computer or using another mechanical means. Disabled people can write using their mouths or feet.
• They must be signed by the person making the will.

Even if you don’t need witnesses, for this kind of will, it is a good idea to tell your loved ones where you plan to keep it. A safe place is preferable to the bottom of a drawer. But don’t put your will in a safety deposit box! Your heirs will need your original will to open the box after you die.

Also, even it is not necessary to mention the place and date the will was made, this can be useful:

• The place is useful if the will is made outside Quebec.
• If you leave more than one will, a date will help the liquidator (executor).

These details are useful because the old will remains valid. If any parts of the old contradict the most recent one, those parts of the old will won’t apply.

To avoid confusion, when you write a second will, make sure to include all your wishes and to cancel all old wills. You can do this by writing “This will completely revokes any earlier wills.”

What are the advantages and disadvantages of holograph wills?

Advantages:

• They can be made anywhere at any time.
• They don’t cost anything. You don’t have to pay professional fees.

Disadvantages:

• They must be probated after you die. Probated means to be made official. This involves costs and delays.
• They can be lost, destroyed or damaged.
• By creating this kind of will yourself, you don’t get legal advice. Advice can help you think about situations you haven’t anticipated.

For example: if you write a second will, you have to think about cancelling the first one.

• Problems of interpretation: legal professionals can anticipate these problems and write a will to avoid them.

For example: if a will says that “all the personal belongings of the deceased will go to her favourite niece”, the meaning of “personal belongings” and who is the “favourite niece” are unclear.

I’ve heard that certain wills must be “probated” after a person’s death. What does this mean?

Holograph wills and wills made in the presence of witnesses have to be probated by a court or a notary when the person who made the will dies. They must be probated even if a lawyer made the will. Only notarial wills don’t have to be probated.

Probate is a request made to a court or a notary to confirm two things

• that the will is the most recent one
• that it meets the legal requirements to be valid

This confirmation does not prevent future legal challenges about what the will says. Probate of a will only confirms that the will meets the conditions to be valid; it does not confirm the contents of the will.

The heirs can probate a will in two ways:

Probate by a Court

A request, called an application, 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 application and can take part when it is presented in court.

Many people ask a notary or a lawyer to write the application, but others write and present the application themselves.

Probate by a Notary

Important! This does not transform the will into a notarial will.

The notary must inform anyone who will inherit about the probate of the will. Probate by a notary has the same effect as a probate by the Superior Court.

However, a notary cannot probate a will that is challenged. This could be the case, for example, if someone claims the will is fake.

To learn more, read our article Probate: Making a Non-Notarial Will Official.

Will everything written in my will be respected?

For the most part, yes.

Only last wishes that can be carried out will be respected. As a general rule, last wishes must make sense and not go against “public order” (decisions society considers unacceptable).

For example:

• A clause in a will cannot be enforced if the person benefitting refuses the gift or if the beneficiary has died before the testator.
• If a piece of property no longer exists or was destroyed, it cannot be given to anyone and the heir will not get money instead.
• A person making a will cannot give something that does not belong to her.
• If a gift comes with an impossible or illegal condition, that condition is cancelled.

Examples of these kinds of conditions: “I give $5,000 to Josette on condition that she does not get remarried,” or “I give $5,000 to Pierre if he runs a marathon in a half-an-hour”.

Lastly, to protect the person making a will from abuse, gifts to certain people are automatically invalid. Here are some examples:

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

How much does a will cost?

Notarial Will

For the person making the will:

It usually costs several hundred dollars to write it, keep an original, provide a certified copy and register it. It can cost more depending on the circumstances.

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

For the heirs:

Since a notarial will doesn’t have to be probated after death, the heirs don’t have to pay anything to have it made official.

Holograph Will or Will in Front of Witnesses 

For the person making the will:

• Option 1: If you write the will yourself without the services of a lawyer, it does not cost anything to make the will.
• Option 2: If you write the will yourself using a will kit (standard form) without the services of the legal professional, you will have to pay for the kit.
• Option 3: If you want the advice of a lawyer before writing the will, or if you ask a lawyer to write it, you will have to pay the lawyer’s fees.

The lawyer’s fees will depend on how complicated your situation is, and on the lawyer’s rate. The bill could be similar to a notary’s.

For the heirs:

These two kinds of wills must be probated at death by a notary or the court. This means the heirs must pay the probate fees out of the estate. The fees are around $1,500. Note that the probate process can take several weeks.