Gouvernement du Québec - Justice

Wills

WillsA 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.

A will must be made in one of three forms: a holograph will, a will made in the presence of witnesses, or a notarial will. A will made in any other form has no legal value.

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
The amounts that one person may demand of another person who has a support obligation to feed, house, clothe and care for that person. 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 and of sound mind can make a will. 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.

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

A will made under pressure, constraint or threat may be invalided by the court.

Important

Before you draw up your will, it is a good idea to make a written inventory of your property (house, cottage, savings bonds) and debts (mortgages and loans). If the inventory is complete, up-to-date and dated, it will be useful to the people who settle your estate.

If you own property of a certain value or whose transfer upon your death might have a fiscal impact, such as an RRSP, it is preferable to consult a specialist before making your will.

If you think that the settlement of your succession will, for whatever reason, pose particular problems, we suggest that you consult a notary or a lawyer before drawing up your will. Such might be the case, for example, because of:

  • the value of the property bequeathed;
  • your desire to protect young children or a person suffering from a chronic disease.

If you are married or in a civil union, in the event of death, the surviving spouse will be entitled to half of the value of the property included in the family patrimony. The succession can only be liquidated once this question has been settled.

You may wish to specify in your will, for example, how your body is to be disposed of after your death or your funeral arrangements. It is preferable to record such requests elsewhere than in your will since its contents are disclosed, in most instances, only after the burial or cremation. We suggest that you record these wishes in a document that can be read immediately after your death.


Can I change my will?

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

You can also add or change clauses by means of another testamentary document. The amendment, also called a codicil, is subject to the same formalities as a will and, to be valid, it must satisfy the same requirements as the latter. However, it can take another form than the initial will, provided that it conforms to the characteristics of the form chosen.

Your marriage or civil union contract may contain a testamentary provision called a gift mortis causa. The clause has the same legal force as the notarial will.

If your contract indicates that the clause is irrevocable, you must obtain the consent of the beneficiary of the gift, for example, your spouse, to bequeath the property through your will. However, you can make a new will if your contract:

  • specifies that it is revocable;
  • does not mention that it is irrevocable.


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, 2015.

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. Moreover, it is preferable to date it even if doing so is not essential to ensure its validity. If you have made several wills, it will be easy to determine the most recent one, which truly reflects 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 register provided for by law (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 the holograph will, a will made in the presence of witnesses is a document that you draw up yourself. You can:

  • write it by hand or use a computer or other device;
  • have someone else, such as a lawyer, write it.

You must then declare in the presence of two witnesses of full age that the document is your will and sign it. You can also ask someone to sign it for you in your presence and according to your instructions. After you have signed the will, the witnesses must also sign it in your presence. You do not need to disclose the contents of your will to the witnesses.

If your will is written by another person or using a computer, your witnesses and you must sign or initial each of the pages.

Be sure that someone you trust knows where you keep your will. You can also give it to a notary or a lawyer, who will register it in the Registres 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 subject to more formalities than the previous two types of wills. The will must be received by a notary, that is, it must be:

  • drawn up by a notary;
  • read by the notary to the person who is making the will (testator), who is either:
    • alone,
    • in the presence of a witness,
    • in certain cases in the presence of 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  and register it in the Registres des dispositions testamentaires et des mandats du Québec, 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.

Important

The formalities for each of the three types of will must be respected, or the will may be declared void. However, if a will you make in one form does not meet the requirements for that form, it may still be valid as a will in another form if it meets the requirements for that other form. For example, if you make a will in the presence of witnesses but fail to have it signed by two witnesses, it may be considered as a holograph will if you wrote it entirely by hand and signed it.

The law provides for specific formalities in certain cases, in particular concerning the will of a person who is deaf, mute or blind.


Top


Heirs

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

You can leave all of your property to one person.

However, if you do so, you must make provision for at least one other person to inherit should the sole heir die before or at the same time as you do.

Minor child

If you are the parent of a minor child, your spouse and you can name a tutor to the child in your respective wills should both of you die before the child reaches the age of majority. Accordingly:

  • if one of you dies, the surviving parent will be the tutor;
  • if both of you die,
    • the tutor will be the person designated by the last surviving parent if you die at different times;
    • the tutor will be the person designated by the court if you die at the same time and have not designated the same person.

Groups of heirs

Your will may be subject to a legal challenge if you use generic expressions such as “my children” or “my nieces and nephews” to designate your legatees.

Moreover, such expressions can obscure your final wishes. Accordingly, if your will states “I bequeath all of my property, in equal shares, to my children” and one of your children predeceases you, his share of the inheritance will be left to his children (your grandchildren). To avoid such a situation, you must clearly indicate it in your will.

Spouse

If you are married or in a civil union, the person who liquidates your succession must, before doing so:

  • apportion the family patrimony;
  • abide by the provisions in your matrimonial regime.

Consequently, you may not bequeath:

  • the portion of the family patrimony that belongs to your surviving spouse;
  • the surviving spouse’s portion of the matrimonial regime.

Furthermore, you may not limit in your will the rights of your surviving spouse in the event that he or she remarries or enters into a civil union after your death.

For more information, see the brochure entitled Family patrimony.

Former spouse

If you have made a bequest to your spouse prior to your divorce or the dissolution of your civil union, the bequest is revoked. Indeed, the divorce or the dissolution of the civil union nullify the gifts mortis causa that:

  • you granted your former spouse because of your marriage or civil union;
  • you included in your marriage contract or civil union contract.

However, a bequest made to your former spouse is maintained if you have, through testamentary provisions, indicated your intention to favour him or her in the event of divorce or dissolution of the civil union.

Divorce or the dissolution of the civil union do not usually nullify:

  • other gifts mortis causa, that is, gifts that other people have made to your former spouse;
  • gifts inter vivos (between living person) that:
    • you have made to your former spouse, or
    • that other people have made to your former spouse or to you because of your marriage.

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.

Important

You cannot require your heirs, as a condition for their inheritance, to perform acts that are unreasonable, illegal or contrary to good morals or public order.

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, previously called the testamentary executor, is the person responsible for settling the succession.

You are not obliged to appoint a liquidator in your will but it is advisable to do so. You can even name a replacement should the person chosen predecease you or be unable or unwilling to accept the responsibility.

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.

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. For more information, you may read the publication entitled Successions.

Top


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 that the will is valid in terms of its form;
  • allow the will to be used: for example, the liquidator can begin to liquidate the succession; make it possible to obtain certified copies of the original.

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 Icône indiquant que l'utilisateur sera conduit à un autre site. and submit both the translation and the original when the will is probated.

Important

Because a notarial will and amendments (also known as codicils) made before a notary are authentic acts, probate is not required to ensure their validity.


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.

Important

There is no longer any obligation of support between grandparents and grandchildren.


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.

For more information

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 Clicking on this icon will take you to another website.
How to submit an application for the probate of a will:
     • Application for the Probate of a Will Clicking on this icon will take you to another website.
Québec's register of testamentary dispositions and mandates:
     • Registre des dispositions testamentaires et des mandats de la Chambre des notaires du Québec Clicking on this icon will take you to another website. (In French)
     • Registre des testaments et mandats du Barreau du Québec Clicking on this icon will take you to another website.
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 Clicking on this icon will take you to another website.
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 Icône indiquant que l'utilisateur sera conduit à un autre site.

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.

Top




Latest update: January 1, 2015



General informationPolicies, Studies and ReportsAdministrative documents
Publications for saleAccess to informationPolicy on privacyAccessibility