Will

Responsibility: Ministry of Justice

A will is a legal document, a writing in which a person (testator) indicates :

• the person or persons to whom he or she passes his or her property and debts, and the terms and manner in which the distribution of the property is to be made;
• the liquidator of the estate. If the testator does not designate a liquidator, the responsibility for carrying out his wishes falls to the heirs collectively.
• The Civil Code of Québec recognizes three forms of wills: holograph wills (without witnesses and entirely handwritten by the testator), wills made in the presence of witnesses and notarial wills.

Writing a will is not an obligation. However, it allows you to decide for yourself how to distribute your property after your death.

A will is a legal document in which a person names his or her heirs and indicates how much of the estate is to be distributed to them. It can also name an executor or guardian for a minor child, if applicable.

A will can be made in any of the following forms:

• a holograph will
• Witnessed will;
• notarial will.

A will made in any other form, such as a tape recorder or videotape, has no legal effect.

A will can be revoked at any time, which allows the testator to redo it as many times as he or she wishes. He or she may also add clauses or modify some of them by means of another document of a testamentary nature. These modifications, or codicils, are subject to the same formalities as a will and must meet the same requirements to be valid.

HOLOGRAPHIC WILL

This will, which may consist of only a few lines, is written and signed entirely by hand by the testator. It is preferable to date it to ensure its validity and to facilitate identification of the most recent will if several have been written. The presence of witnesses is not required during the drafting process.

The testator is usually the only person who knows about the existence of his or her will. To ensure that it is discovered after his or her death, he or she can inform a trusted person of the place where he or she keeps it. They can also entrust it to a notary, who will register it with the Registre des dispositions testamentaires et des mandates du Québec (RDTMQ).

This will must be probated following the death.

WILLS MADE IN THE PRESENCE OF WITNESSES

This will can be written by hand, typewritten or computerized by the testator. Before signing it, the testator must declare this document as his or her will in the presence of 2 witnesses. The witnesses must also sign it. If the will is written by a third party or with a machine, the testator and witnesses must sign or initial each page of the will.

The will may also be prepared or drafted by a lawyer.

Only the printed version of the will is valid. The electronic version of the document has no legal value.

To ensure that the will is discovered after death, the testator can inform a trusted person of the location where he or she keeps it. He or she can also entrust it to a notary, who will register it with the RDTMQ.

This will must be verified following the death.

NOTARIAL WILL

A notarial will is an authentic act. It 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 with the RDTMQ.

This will does not need to be probated following the death.

TESTAMENTARY CLAUSE

The marriage or civil union contract may contain a testamentary clause. This clause is usually referred to as the "Last living the property" clause. It states that the surviving spouse is the sole heir to the property. It has the same legal value as a notarial will.

If this clause is irrevocable, the testator must obtain the consent of his or her spouse to change it and dispose of the property by will. If it is revocable or unspecified, the testator can make a will without notifying his or her spouse.

Divorce or the dissolution of a civil union automatically revokes a legacy made to a spouse by marriage or civil union contract, unless the testator has expressed his or her wish to maintain it.

LAST WISHES

The testator may indicate to his or her loved ones his or her wishes concerning the manner in which he or she wishes to dispose of his or her body following his or her death and the manner in which his or her funeral will be held.

It is best to record your wishes in a document other than your will to ensure that they are known immediately after your death. The contents of the will are usually officially known after the burial or cremation.

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