The only form of will that does not require any form of probating (validation) is the notarial will. Both a holograph will and a will made in the presence of witnesses must be probated at the request of any interested party. Usually it is up to the liquidator of the succession (see Definitions) to make that request. Similarly, if any changes have been made to the original will and they are not notarized, they must be probated.
The probating of a will can be done by either the Superior Court or a notary. However, a contested will must be probated by the Superior Court. The purpose of probating a will is essentially to:
- confirm that the author of the will is deceased
- confirm that it is the last will of the deceased person
- show that it was written by the deceased, or by another person on behalf of and at the request of the deceased, such as a lawyer
- confirm that the will meets the legal requirements as to form
- make the will usable, i.e. allow the liquidator to use the will to begin liquidation of the succession
- allow the issuance of certified true copies of the original
Once the will has been probated, the clerk of the Superior Court or the notary keeps the original and gives a certified true copy of the will to any interested person who requires it. The notary must also file a copy of the original will at the office of the clerk of the court in the judicial district where the deceased person resided.
Unless exempted by the Superior Court, the liquidator of the succession also has an obligation to notify (see Definitions) all known successors (see Definitions) of the probate proceeding, in order that they may contest it.
Translation
If the will is written in a language other than English or French, it must be translated by a translator recognized by the Ordre des traducteurs, terminologues et interprètes agréés du Québec. The translation must accompany the application for probate of the will.
Contesting a Will
A will can be contested even if it has been probated. The purpose of contesting a will is to verify that it meets the requirements of the law and is indeed the will of the deceased.
The conclusions of a probate proceeding can also be contested.
Heir
A person who has accepted the inheritance to which he or she is entitled.
Liquidator of a Succession
The person who is designated to settle the liquidation of a succession.
Notification
Formality by which a written document is brought to a person’s attention by any means, with proof that the formality has been carried out. It can consist of delivering, sending (e.g. by registered mail), transmitting or publishing the document.
Successor
An intended heir who has not yet decided whether to accept the succession.
Succession
All of the property and obligations left by a deceased person to a natural or legal person.
Any interested party, such as the liquidator of the succession or the successors of a deceased person.
Civil Code of Québec, 1991, chapter 64, art. 772 to 775
Code of Civil Procedure, R.S.Q., chapter C-25.01, art. 887 to 891
