Ministère de la Justice
A will is a legal document in which a person, the testator, designates his or her successors (see definitions) and the share of the succession (see definitions) to which they are entitled. The testator may also designate a liquidator of his or her succession or, if applicable, a tutor for his or her minor child or children.
A person may draw up or modify his or her own will or call upon the services of a notary or a lawyer to do so.
A will applies to one single person only.
A will can be revoked at any time and the testator may change it as often as he or she wants. The testator may also add or change provisions 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.
Three types of wills are legally recognized in Québec:
A holograph will may consist of only a few lines. It must be entirely written and signed by the testator. It cannot be drawn up using a typewriter, computer, or form, It is preferable to date it even if doing so is not essential to ensure its validity. No witness is required to validate this type of will.
The testator is usually the only person who knows that his or her holograph will exists. To make sure that it is found upon his or her death, the testator can:
After the testator's death, a holograph will must go trough probate conducted by the Superior Court or by a notary.
Will made in the presence of witnesses
The testator or another person may draw up a will made in the presence of witnesses. It may be hand written or prepared on a typewriter or a computer. The testator must declare in the presence of two witnesses that the document is his or her will and then sign it. The witnesses must sign it as well.
If the will has been hand written by another person or drawn up using a device, the testator and his or her witnesses must sign or initial each the pages.
To make sure that the will is found upon his or her death, the testator can tell a trusted person where it is kept. It can also be left in the care of a notary or a lawyer, who will register it in the Registres des dispositions testamentaires et des mandats de la Chambre des notaires du Québec or the Registres des testaments et mandats du Barreau du Québec, as the case may be.
After the testator's death, a will made in the presence of witnesses must go through probate conducted by the Superior Court or by a notary.
A notarial will is an authentic act. It must be drawn up by a notary and read by the notary to the testator. The will must indicate the date and place where it was made. In certain cases, the presence of more than one witness is required, for example if the testator is a person with a disability.
The notary keeps the original document and registers it in the Registres des dispositions testamentaires et des mandas de la Chambre des notaires du Québec.
Upon the death of the testator, a notarial will does not need to be probated.
A marriage or civil union contract may contain a testamentary provision commonly known as a gift mortis causa. It stipulates that the surviving spouse is the sole heir with respect to the testator's property. The provision has the same legal force as a notarial will.
If it is indicated that the provision is irrevocable, the testator must obtain the consent of his or her spouse to change it and bequeath his or her property through a will. The testator may, however, make a new will without notifying his or her spouse is the contract specifies that it is revocable or if the contract makes no mention on the subject.
However, since its contents are disclosed, in most instance, only after burial or cremation, it is preferable for such requests to be noted in a separate document accessible immediately after the person's death.
A person may also reach a contractual agreement with a funeral director as regards funeral service arrangements and conclude a pre-paid burial purchase contract so that these costs are not included in the succession. This way the person's last wishes will be respected upon his or her death.
Funeral arrangements will be chosen by the immediate family if a person's last wishes have not been specified.
Person who accepts the inheritance to which he or she is entitled.
A gift made in a will.
Person called upon to inherit, but who has not yet accepted the inheritance.
All assets and debts left by the deceased person.
Any person of full age, of sound mind, free of any pressure, constraint or threat.
A minor may make a will to dispose of property of little value, such as CDs, cassettes, a bicycle, etc.
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