A last will and testament is a legal document that names the heirs as well as the share that each will receive after death. There are 3 recognized forms of wills under Québec inheritance law: a notarial will, a witnessed will, and a holograph will. A will in a form other than these will have no legal value in any case.
To ensure that it always reflects your current wishes, we strongly recommend rereading and — if necessary — rewriting your will regularly. You should also opt for one of the three recognized forms:
1 – What is a notarial will?
As its name suggests, a notarial will is made before a notary, with at least one witness. This is governed by a very strict procedure and executed by the notary, a civil registrar. Due to these characteristics, this document is rarely contested, as it constitutes nearly irrefutable evidence of the testator’s last wishes. It can be an effective tool for preventing the manipulation of elderly people and/or those suffering from Alzheimer’s disease, for example. The veracity of the notarial will is acquired ex lege, as it’s an authentic instrument. This type of will is therefore exempted from verification procedures during the liquidation of the estate.
2 – What is a witnessed will?
A witnessed will is also referred to as a “will under the form derived from English law.” It must be signed in the presence of at least two witnesses (of legal age at the time of signing). While it’s not necessary for the testator to have drawn up the will, it is mandatory for the testator to declare before the present witnesses that it is indeed their will. For their part, the present witnesses must sign the document to confirm their presence. This type of will must be verified by a judge of the Superior Court of Québec.
3 – What is a holograph will?
A holograph will is completely drawn up and signed by the testator; there are therefore no notaries or witnesses present on the date of its execution, which makes it very simple to create. It must be precise and unequivocal about the testator’s wishes. This type of will must be verified after the testator’s death; this verification is performed by the Superior Court of Québec. It should also be noted that a will prepared or drawn up by a lawyer will be considered a witnessed will. In any event, the verification does not preclude any subsequent contestations, and a will may very well be considered invalid.
Contesting a will
While most people approaching the ends of their lives take all the necessary steps to create a will that expresses their last wishes precisely, some unfortunately fall victim to captation. Captation is the use of dishonest measures with the aim of obtaining an inheritance. The vulnerability created by isolation, illness, loneliness, and many other factors allows malicious people to achieve their goals more easily: they can therefore force a testator in a difficult situation to make donations or bequeath an inheritance. Fortunately, it’s possible to contest a will if it doesn’t meet the requirements relating to inheritance law. It should be noted that the evidence for captation is presumptive in most cases, since these manoeuvres to appropriate an inheritance are often made discreetly, even insidiously.
Wills made abroad
It sometimes so happens that a will has been made abroad; in this case, it may be considered as long as certain formalities are respected. In addition, the will must comply with the laws of the place where it was drawn up, the laws of the testator’s place of residence (at the time of the delivery of the will or at the time of death), and the laws of the testator’s country of origin. This will trigger a process involving a verification letter in the country in question.
To learn more on the many intricacies related to inheritance law, feel free to read more here on our estate law page. Or, should you have questions, to reach out to us using the contact form below.