Wills

A will is a legal document in which you specify who will inherit your property after your death, and what the share of each person will be.

You can choose to make your will in one of three forms: a holograph will, a will made in the presence of witnesses, or a notarial will.

You should re-read your will from time to time to make sure that it still reflects your true intentions, and that it matches your current situation.

• Definitions
• Who can make a will?
• Can I change my will?
• Types of will
   • Holograph will
   • Will made in the presence of witnesses
   • Notarial will
• Heirs
   • Sole heir
   • Minor child
   • "Groups" of heirs
   • Spouse
   • Former spouse
   • People who may not inherit
• Liquidators
• Probate of a holograph will or a will made in the presence of witnesses
• Life insurance of the deceased
• Survival of support obligations
• Dying without leaving a will
• For more information

Definitions

Authentic act
A document drawn up by a public officer with the formalities prescribed by law.

Support
Everything required for a person’s subsistence, in other words everything needed to feed and provide for the person.

Person to whom support is owed
A person entitled to receive support payments.

Heir
A successor who accepts the inheritance to which he or she is entitled.

Legatee
A person named in a will as the receiver of a legacy.

Legacy
A gift made in a will.

Obligation of support
A reciprocal obligation established by law between specific people (ascendants, descendants, spouses through marriage or civil union), under which one person can, if in need, claim support from the other person, in other words the money needed to feed, house, clothe, and care for himself or herself.

Revoke
To cancel a legal document.

Private writing
A document written by the person concerned or a third party, but that is not signed before a notary.

Successor
A person who has a legal right to inherit under the Civil Code, but has not yet decided whether or not to accept the inheritance.

Testator
A person who bequeaths property in a will.

Who can make a will?

Any person over the age of eighteen, who is of sound mind and not subject to any pressure, constraint or threat, can make a will.

A person under the age of eighteen may make a will to dispose of property of little value, such as CDs, cassettes, a bicycle, photos, toys, etc.

The fact that a person may require assistance from an advisor or tutor does not alter that person’s legal ability to make a will.

Can I change my will?

Your will can be revoked at any time. In other words, you can change it as often as you want.

You can add or change clauses by means of another testamentary document. In order to be legally valid, the modification (also called a codicil) must satisfy the same requirements and conditions as the will. However, it may be in another form, provided it meets the necessary conditions for that form.

Your marriage or civil union contract may contain a testamentary clause commonly called the “surviving spouse” clause, making your spouse the sole inheritor of all your property. Legally, this clause has the same value as a notarized will.

If the contract states that this testamentary clause is “irrevocable”, you must obtain your spouse’s consent before changing it. If the contract states that it is “revocable”, or does not state that it is irrevocable, you have the right to make a new will.

Types of will

Holograph will

The holograph will is the simplest form of all. This will costs nothing and may consist of only a few lines. For example:

I, Mildred Jones, leave all my property to my daughter Jennifer.

Signed: Mildred Jones

Montréal, February 27, 2008.

The holograph will must, however, be entirely written and signed by the testator (the person making the will). It cannot be drawn up using a typewriter, computer, or form. No witness is required to validate this type of will. It is preferable to date the will, although this is not an essential condition for validity. If you write several wills, the date will make it easier to identify the most recent will that indicates your final wishes.

If you choose this type of will, you will be the only person who knows it exists. To make sure it is found when the time comes, you should tell someone you trust where it is kept. You can also leave it in the care of a notary or a lawyer, who will register it in the Registre des dispositions testamentaires et des mandats du Québec (see the section For more information).

After your death, your heirs must have your will probated. Please refer to the section entitled Probate of a holograph will or will made in the presence of witnesses.

Will made in the presence of witnesses

Like a holograph will, a will made in the presence of witnesses is a document you draw up yourself. You can write it by hand, or use a typewriter or computer. You can also have it prepared by someone else. In all cases, you must declare that the document is your will in the presence of two witnesses above the age of eighteen, and then sign it. You can also ask someone else to sign it for you, in your presence and in keeping with your instructions. After you sign your will, the witnesses must sign it immediately in your presence.

In the case of a will written by hand by a third party or using technical means (typewriter, computer, etc.), you and your witnesses must sign or initial each page.

You do not have to disclose the contents of your will to your witnesses. However, like a holograph will, you should make sure that someone you trust knows where your will is kept. You can also leave it in the care of a notary or a lawyer who will register it in the Registre des dispositions testamentaires et des mandats du Québec (see the section For more information).

After your death, your heirs must have your will probated. Please refer to the section Probate of a holograph will or will made in the presence of witnesses.

Notarial will

A notarial will is a will drawn up by a notary. It involves more formalities than the other two types of will. It must be made before a notary in the presence of a witness or, in certain cases, two witnesses, for example when the testator is blind. The will must indicate the date and place where it was made. Once the will has been read, it must be signed by the testator, the notary and the witness, in each other’s presence.

The notarial will has several advantages. Since the notary keeps the original, there is no risk that you will lose it, and your legatees will be sure of finding it when you die. In addition, you will benefit from the notary’s experience and advice, avoiding errors that could create difficulties for your legatees. There will be less chance of someone opposing your last wishes, since this form of will, as an authentic act, is more difficult to challenge in court.

Last, when you die, your heirs will not need to have your will probated.

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Heirs

Your successors have six months to accept or refuse your succession, from the date on which they became entitled to inherit, generally the day of your death.

They can accept the succession in an express manner, for example by stating, orally or in writing, that they wish to receive their share of the succession.

By taking or failing to take certain actions, they are also considered to have accepted the succession, even without stating their formal agreement. Specifically, this occurs when a successor

• uses property from the succession as personal property;
• misses the deadline for rejecting the succession; or
• dispenses the liquidator from making an inventory of the property.

A succession can only be refused by way of a notarial act—a private writing is not sufficient. If no notarial document can be produced to show that a successor has refused the succession, the successor is deemed to have accepted it. More rarely, a succession can be refused by way of a judicial declaration during a court case.

The heirs who decide to accept the succession must pay any outstanding debts. Except in exceptional cases, they are not required to pay the debts that exceed the amount of the succession. For example, they may be responsible for debts that exceed the assets of the succession if they fail to make an inventory of the property of the succession, if they have mingled their own property with the property of the succession, or if they decide to liquidate the succession without following the rules set out by the Civil Code. For more information, see the brochure entitled Successions.

Sole heir

Even if you want to leave all your property to one person, it is best to name one or more other individuals who may inherit if the first heir dies before or at the same time as you.

Minor child

The parents of a minor child can, in their will, name a tutor for their child in case both parents die before the child reaches the age of eighteen. If only one parent dies, the other parent becomes the child’s tutor. If the two parents die at different times, but before the child has reached the age of eighteen, the last surviving parent can name the tutor. If both parents die at the same time, and each parent has named a different person as tutor, the court chooses which one will act as tutor.

"Groups" of heirs

If you use generic expressions such as “my children”, “my nieces and nephews” or other similar expressions to designate legatees in your will, there may be grounds for a court challenge. For example, if you use the wording “I leave all my property to my children in equal shares”, and one of your children dies before you, his or her own children (your grandchildren) will inherit your child’s share. If this is not what you want, you should mention it clearly in your will.

Spouse

If you are married or in a civil union when you die, the first task of the liquidator is to share the family patrimony and then to comply with the provisions of your matrimonial regime—separation as to property, community of property or partnership of acquests—before liquidating the succession.

This means that you cannot, in your will, dispose of the part of the family patrimony that belongs to your surviving spouse, or that is owed to your spouse following a division of the family patrimony. In addition, you cannot limit the rights of the surviving spouse in the event that he or she remarries or enters into a new civil union.

As a reminder, the rules for sharing the family patrimony state that the surviving spouse receives half the net value of the following property:

• all residences used by the family (including condos, cottages, apartments and other dwellings);
• the furniture used by the family in those residences;
• the motor vehicles used for family transportation;
• the rights accrued in a pension plan during the marriage or civil union;
• earnings registered during the marriage or civil union under the Act respecting the Québec pension plan or equivalent programs.

For more information, see the brochure entitled Family patrimony.

Former spouse

By law, any legacy made to a spouse becomes null if the marriage ends in divorce or the civil union is dissolved, unless your will stipulates that the legacy is to be maintained even following a divorce or dissolution.

The divorce or dissolution also cancels other gifts to be made in the event of your death to your former spouse, in consideration of your marriage or civil union, that are mentioned in your marriage or civil union contract.

However, the divorce or dissolution does not cancel other gifts to be made in the event of death, in other words gifts made by other people to your former spouse.

In addition, the divorce or dissolution does not cancel any gifts inter vivos, in other words gifts made by one living person to another, that you have granted to your ex-spouse, or that another person has granted to you or to your ex-spouse, in consideration of your marriage, unless the court cancels them when it finalizes your divorce. The court can also order that a gift be reduced, or that payment be postponed to the date it specifies.

The same rules apply to gifts made in consideration of a civil union that are mentioned in the civil union contract, after the civil union is dissolved.

People who may not inherit

By law, any legacy made to the owner, administrator or employee of a hospital or residential centre is null and void if it was made while you were receiving care or services there, unless the person concerned is your spouse or a close relative.

People who act as witnesses when you sign your will, as well as the notary and the notary’s spouse or relative in the first degree (such as the notary’s children), cannot inherit from you.

Similarly, some people may be unworthy of inheriting their share of your succession. This applies specifically to any person who has made an attempt on your life, or who has concealed, altered or destroyed your will in bad faith.

Liquidators

The liquidator, formerly called the “testamentary executor”, is the person responsible for liquidating your succession.

You are not required to name a liquidator in your will, but it is a good idea to do so. You can even name a substitute in the event that the first person named dies before you or is unable, or unwilling, to act as liquidator.

If you do not designate a liquidator in your will, all of your heirs will become responsible for liquidating the succession. They can share the duties among themselves, or agree on and designate a liquidator. If the heirs cannot agree, the court may designate a liquidator on an application from one of the heirs.

The liquidation of a succession primarily involves

• identifying the people who are entitled to inherit;
• making an inventory of your property (see the document entitled Successions) and collecting the amounts that are owed to you;
• paying the debts of the succession;
• distributing the property to the heirs;
• registering an inventory closure notice in the Registre des droits personnels et réels mobiliers as well as in a newspaper in the area where you lived.

The liquidator retains his or her powers until all the duties have been completed. There is no specific deadline for completing the liquidation, but the liquidator has an incentive to finish as quickly as possible since, if it takes longer than a year to liquidate the succession, the liquidator has to report on his or her administration to the heirs, particular legatees and creditors who have not been paid.

A liquidator who is not an heir is entitled to be paid, and it is a good idea to specify an amount in your will for this purpose. If the liquidator is an heir, he or she can still be paid as long as this is specified in the will, or if all the heirs agree. In all cases, the liquidator is entitled to be reimbursed for the expenses incurred while liquidating the succession.

With respect to the liquidator, it is important to note that

• no-one, except a sole heir, can be required to act as liquidator;
  
• a person who agrees to act as liquidator can later withdraw, for a valid reason;
  
• a liquidator who withdraws must notify the heirs in writing;
  
• the liquidator is responsible for any damages sustained by the heirs if there is no valid reason for the withdrawal or if it occurs in an untimely manner, or if it is equivalent to a failure on the liquidator’s part to fulfil his or her duties.

Your succession may be liquidated without following the rules provided in the Civil Code if your succession is obviously solvent and your heirs all agree to proceed in such a manner. However, in this case, if the debts of your succession are greater than the value of the property, your heirs will have to pay all of the debts.

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Probate of a holograph will or a will made in the presence of witnesses

If you have made a holograph will or a will in the presence of witnesses, it must go through probate after your death. Probate will be conducted by the Superior Court or a notary.

A will drawn up or prepared by an attorney (who is not a notary) is considered to be a will made in the presence of witnesses, and must also go through probate. The same applies to amendments made to the initial will, if they are holographic or made in the presence of witnesses.

Probate does not prevent any later challenge to your will. The main objectives of probate are to

• establish that the will was drafted by you or by a third party at your request;
  
• establish that you have died;
  
• establish, initially, that the form of the will is valid;
  
• provide public access to your will, since it will be filed at the office of the court or notary conducting the probate;
  
• make it possible to obtain certified copies of the original.

If the request for probate is made to the court, the applicant must submit the request to the court for the district in which you are domiciled or, if you have no domicile in Québec, the court for the district where you die or where you leave property.

The request for probate must be submitted with certain documents, including:

• the original will;
  
• the death certificate issued by the Directeur de l’état civil;
• a sworn declaration acknowledging the signature and, if necessary, the handwriting of the deceased;
• proof that notice has been sent to the heirs and successors.

The heirs and legatees must be notified when a request for probate is made. However, the court clerk may dispense the person applying for probate from notifying all the successors.

If you wrote your will in a language other than French or English, your heirs will have to have it translated by a translator recognized by the Ordre des traducteurs, terminologues et interprètes agréés du Québec  and submit both the translation and the original when the will is probated.

Life insurance of the deceased

The proceeds of a life insurance policy for which you specifically name a beneficiary are not part of the succession.

However, if your life insurance policy indicates that the insurance is payable to the “succession”, the “heirs” the “liquidators”, the “legal representatives” or any person referred to by a similar expression, the proceeds of the life insurance form part of the succession.

It is important to remember that divorce or the annulment of a marriage, or the dissolution or annulment of a civil union, make any designation of your former spouse as the beneficiary of a life insurance policy null.

Survival of support obligations

In your will, you cannot terminate support payments or eliminate your financial obligations towards people to whom you owe support, such as your former spouse in a marriage or civil union, your children or your parents. Your heirs will have to assume these financial responsibilities for a period of time.

A person to whom you owe support may, within six months after your death, make a claim to your succession for a financial contribution towards support. By law, the person is entitled to do this even if he or she did not exercise the right before you died. For example, if your surviving spouse or child does not receive anything under your will, or considers that the amount received is insufficient, he or she may apply to the liquidator of the succession for support, provided he or she is in need. The amount of support will be established on the basis of various factors, such as the needs and resources of the person to whom support is owed, the assets of the succession, and the amount the person has already received from the succession.

The amount that may be paid to your spouse or child will, however, be limited to the difference between half of what he or she would have received if the succession had been liquidated in the absence of a will (see the section entitled Dying without making a will) and the amount he or she actually received, if any, under your will. The amount is determined by agreement with the liquidator, who must obtain the consent of the heirs or, if no agreement is possible, by the court.

The amount that may be paid to a former spouse is equivalent to twelve months of support.

The amount paid to another person to whom support is owed, such as a parent, is equal to six months of support. In either case, the amount cannot, even if the person was already receiving support when the succession opened, exceed the lesser of twelve or six months of support, or 10% of the value of the succession.

The amount may be paid to the person to whom support is owed in a lump sum or in several instalments.

Dying without leaving a will

If you do not make a will, your property will be distributed among your legal heirs, in other words your spouse (the person with whom you were married or joined in a civil union, or from whom you were separated but not divorced, or with whom your civil union was not dissolved) and your children or, if you have no children, your parents.

In this case, before any other distribution is made, your surviving spouse will receive half of the net value of the family patrimony, plus anything to which he or she is entitled under your matrimonial regime. The remainder of the succession will be distributed in keeping with the rules set out in the Civil Code. To find out more about these rules, see the following documents: Family Patrimony, Separation, Divorce and Dissolving a Civil Union and Successions.

What constitutes family patrimony and the rules for partition of the family patrimony:
     • Family Patrimony
Matrimonial regimes and the survival of the support obligation:
     • Separation, Divorce and Dissolving a Civil Union
The rules for the settlement of a legal succession (when no will exists):
     • Successions
How to write a will:
     • My Will
How to submit an application for the probate of a will:
     • Application for the Probate of a Will
Québec's register of testamentary dispositions and mandates:
     • Register of Testamentary Dispositions and Mandates (In French)
The publication of the notice of closure of inventory:
     • Registre des droits personnels et réels mobiliers
Tutorship for property belonging to a minor child
     • Curateur public
The addresses and telephone numbers of Québec courthouses:
     • Courthouses
The judicial district a municipality is located in:
     • Search for a judicial district

Should you wish to

Have a document translated into French or English from a language other than French or English:
    • Ordre des traducteurs, terminologues et interprètes agréés du Québec 

The content of this document is strictly informative and has no legal value.

If you find some of the information difficult to understand, do not hesitate to contact us. Please note, however, that we cannot interpret the information to apply it to a specific situation.

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Latest update: June 20, 2011