After a separation from bed and board (also known as legal separation), a divorce or the dissolution of a civil union, you should always amend your will. Sometimes, so many changes are needed that it is best to make a new will. However, since the partition of the family patrimony takes precedence over your will, you cannot bequeath your former spouse’s portion of the family patrimony to other heirs. A divorce annuls donations or gifts made to one of the spouses by reason of the marriage. The “surviving spouse” clause in your contract is also revoked.
A will is a legal document in which a person designates his or her successors and the share of the succession that will go to each one. The testator may also name a liquidator or a tutor for his or her minor children, if applicable.
A testator may:
- write or amend a will on his or her own;
- ask a notary or a lawyer to do so.
Three types of will are considered valid:
- holograph will;
- will made in the presence of witnesses;
- notarial will.
A will of any other type, such as an audiotaped or videotaped will, has no legal force.
A will may be revoked at any time: in other words, the testator may draw up a new one as often as he or she wants. The testator may also add or amend clauses by means of another testamentary document. To be valid, a testamentary document (called a codicil ), must satisfy the same requirements and conditions as a will.
Holograph will
A holograph will, which may be only a few lines long, must be written entirely by hand and signed by the testator. It should be dated so as to ensure its validity and make it easier to identify the most recent document when a person has made several wills. There do not have to be any witnesses present when the will is being drafted.
If you choose to make this type of will, you will usually be the only person who knows it exists. To make sure it is found after your death, you should tell someone you trust where it is kept. You may also leave it in the care of a notary or a lawyer, who will register it in the Québec registers of wills and mandates (Registres des dispositions testamentaires et des mandats du Québec).
Holograph wills must be probated by a notary or the court following the testator’s death.
Will made in the presence of witnesses
A will made in the presence of witnesses may be written by hand or using a typewriter or a computer. The testator must declare that the document is his or her will in the presence of 2 witnesses and then sign it. The witnesses must also sign it. If the will is written by hand by a third party or using technical means (typewriter, computer, etc.), the testator and witnesses must sign or initial each page.
This type of will may also be drawn up by a lawyer.
Only the printed version is valid; an electronic copy has no legal force.
To ensure the will is found after your death, you should tell someone you trust where it is kept. You may also leave it in the care of a notary or a lawyer, who will register it in the Québec registers of wills and mandates.
Wills made in the presence of witnesses must be probated following the testator’s death.
Notarial will
A notarial will is an authentic act that is drawn up by a notary in the presence of the testator and a witness. The will is signed by the notary, the testator and the witness. The notary keeps the original document and registers it in the Québec registers of wills and mandates.
Unlike holograph wills and wills made in the presence of witnesses, notarial wills do not have to be probated following the testator’s death.
Testamentary clause
Marriage or civil union contracts may contain a testamentary clause, commonly called the surviving spouse clause , which stipulates that the surviving spouse is the sole heir of the property. This clause has the same legal force as a notarial will.
If the contract states that the testamentary clause is irrevocable, the testator must obtain his or her spouse’s consent before changing it and disposing of his or her property by will. If the contract states that it is revocable, or does not state that it is irrevocable, the testator may draw up a new will without informing his or her spouse.
A divorce or the dissolution of a civil union automatically revokes any legacy made to the spouse under a marriage or civil union contract unless the testator stipulates that the legacy is to be maintained.
Last wishes
A person may specify in a will how his or her remains should be disposed of after death and how the funeral should be arranged. However, since the contents of a will are only officially disclosed in most cases after the burial or cremation, the testator should indicate these wishes in another document that will be accessible immediately after his or her death.
Anyone 18 or over who is of sound mind and not subject to any pressure, threat or constraint can make a will.
Note
A minor child may dispose of articles of limited value (bicycles, DVDs, CDs, toys, etc.) in a will.
Civil Code of Québec , 1991, chapter 64, a. 703 to 775
