How do I know if my will is legally binding in Quebec? What are the ways I can make my will in Quebec? Do I need a lawyer or notary to make my will legal? What happens if someone makes a support claim? These are common questions we hear from Quebecers, and ones that are important to ask as you create your estate plan.
Quebec has a different legal system than the rest of Canada, and the laws governing wills are outlined in the Civil Code of Quebec, which was introduced in 1994. Quebec is also the only province that recognizes notarial wills (for notarial wills, there are rules set out by the Notaries Act) - in Quebec there are two types of legal professionals, lawyers and notaries, and both can draft wills and give legal advice. It’s important to understand the nuances in local laws. In this article, we explain what makes a will legally valid in Québec, and the various ways to create your will, so you can feel confident in your estate plans.
What Is A Will?
A will, also known as your last will and testament, is a document that outlines how you want your property to be distributed once you’ve passed away, appoints a liquidator to handle your estate administration, and assigns people to care for dependents (minor children or pets). In Quebec, your property is referred to as your “patrimony,” but it’s often referred to as your estate, or your succession. Your estate includes all your assets and property — anything you possess of financial or other value. Exceptions include life insurance policies that have a specific death beneficiary.
From your estate, you can choose to leave specific gifts to individuals, as well as donations to charities and organizations that are close to your heart. Anything left over is called ‘the residue.’ The most current version of your will, if executed correctly, should override previous versions of your will or verbal agreements you may have made during your lifetime.
What Are The Different Types Of Legal Wills in Quebec?
There are three main types of legal wills in Quebec - holographic wills, notarial wills, and wills made in the presence of witnesses.
It’s important to understand the difference and how that affects the probate process after you pass away (the process of the courts formally recognizing that a person’s will as meets the legal requirements to create a will). The probate process involves time (up to several months), which can delay payouts to legatees; and money - typically legal fees of up to several thousand dollars.
A holograph will is a handwritten will. It is the only type of will that does not require witnesses. As long as you handwrite it on paper and sign it, a holograph will is legally binding in Quebec. A holograph will is required to be probated after you pass away.
The main pro of a holograph will is that it’s free to write one, but the downside is that unless you have knowledge of wills, you may not write a comprehensive will, and you may omit key information or choices. Also, your family will need to go through the probate process after you pass away.
Will made in the presence of witnesses (attested will)
A will in front of witnesses is a will that is either created using a platform like Willful, through a paper or online will kit/form, or created by a lawyer. This is also known as an attested will. It does not need to be notarized. A will in front of witnesses will need to be probated after you pass away.
You can create a will in front of witnesses in a few ways:
- Visit a lawyer - a lawyer can draft a will for you in Quebec, but unlike a notarial will, it will need to go through probate
- Use a platform like Willful - Willful’s Essentials plan guides you through creating a will in front of witnesses, and provides you with clear instructions on how to sign and witness it in order to make it legally valid
- Purchase or download a will kit or a fill-in-the blank form
The pros of a will in front of witnesses are lower cost, convenience, and ease of signing/witnessing, but the downside is that your family will need to go through the probate process after you pass away.
Notarial will (authentic will)
A notarial will can be drafted by a lawyer or notary, and it must be executed by a notary and registered with the Chambre des notaires (the governing body that oversees notaries). Sometimes this is called an “authentic will”. If you create a notarial will, your will does not have to go through probate when you pass away. This is the most common form of will in Québec, and Québec is the only province with this type of will. Willful is the first company to offer fully digital notarial wills in Quebec, due to COVID-19 emergency orders that allow for online executions of notarial wills. Read more about notarial wills in our guide to notarial wills.
What Makes A Will Legal In Quebec?
This is the criteria to create a legal will in Quebec:
For all types of wills:
- You must be over the age of majority (18 in Quebec) and of sound mind (you must have the capacity to create a will and understand its effects and contents)
- Exceptions: there are specific circumstances that allow you to make a legal will before turning 18, like if you’re married, or if the property being disposed of is of little value
Legal holograph will:
- Written entirely in your handwriting without any mechanical process
- Signed by you
Legal will in front of witnesses:
- It must be in writing as a physical copy (you cannot store a will online)
- The will-maker must initial each page of the document and sign the last page
- Two witnesses must initial each page of the document and sign the last page (they have to be in the presence of the will-maker, but they do not have to be present at the same time the will-maker signs the document
- Valid Witnesses: Neither your liquidator or legatees nor their spouses can witness your will. If a witness is a legatee, the gift made to that person will not be considered valid. The best practice is to find witnesses who do not benefit from your will.
- The signatures must be at the very end of the will
Legal notarial will:
- It is typically drafted by a lawyer or notary, or created by a platform like Willful and executed by a notary
- It must include the date and place the will was made, and the names of the witnesses
- There are witnessing requirements for notarial wills; Willful’s notary partner will ensure to adhere to all witnessing requirements
- If the notary drafts the will, the notary must ensure the will-maker is familiar with and understands the contents of the will
- It must be signed on the last page by the will-maker, witness or witnesses, and the notary in each other’s presence (no requirement to initial each page)
Each Willful document comes with a detailed instruction page to make sure all legal requirements are followed. If you create a notarial will with Willful, we will connect you with our partner notary to execute your will via video conference.
There is no law that says a will has to be drafted by a lawyer or notary - as long as you meet the conditions above, your will is legally-binding.
How Can I Make A Legal Will In Quebec?
There are several ways to make your will in Quebec, as long as you meet the criteria above for what makes a will legal. In fact, it’s easier than you think!
Here few key ways you can create a legal will in Quebec:
- Handwrite your will: a holograph will is a will handwritten (not typed) by you (the testator) and signed by you. It does not require the presence of any witness. This method is often not recommended, as people often make contradictions and/or errors, but it is absolutely legal.
- DIY will kits: you’ve likely seen a will kit at a store like Staples (Bureau en Gros) - these are template documents with fill-in-the-blank spaces for you to write your wishes. The issue with these documents is that they’re one-size-fits-all, and they don’t provide any customization or flexibility. They also don’t allow for future updates (you would need to purchase another will kit in order to make a change)
- Online wills: platforms like Willful are different from DIY will kits - our platform does not provide fill-in-the-blank templates, rather we work with estate lawyers in Quebec to build our legal content, and we ask you a series of questions about your unique life situation to create a completely customized document tailored to your case—think of it like TurboTax for estate planning. We offer both types of wills - wills in front of witnesses (our Essentials plan), or a notarial will (our Notarial plan)
- Estate lawyers: estate lawyers are able to create completely customized wills for any case, regardless of how complex
- Notaries: notaries in Quebec are able to draft wills, and they are the only people who can execute and register notarial wills
How Do I Make My Will Legally-Valid?
- As long as your will complies with the above requirements, a will created through Willful carries the same legal weight as one created by a lawyer or notary
- As long as your will is written and signed by you when you are over the age of majority and in sound mind you do not need a lawyer or notary to create it
- In the case of a typed will, it must be witnessed correctly to be legally valid (details in the previous section)
- A notarial will is difficult to attack, and often only mistakes will be rectified
Do I Need A Lawyer Or Notary To Make A Legal Will in Quebec?
When it comes to estate planning, some people turn to lawyers or notaries in search of legal advice. Identical, self-made or computer-generated documents (for example, a handwritten will or Willful’s Essentials option) that follow the provincial requirements are just as legal as those prepared by a lawyer. The legality of a holograph will or will in front of witnesses (Willful’s Essentials plan) is based on the final document and correct witnessing and signing, not on who prepared it.
However, only a will that complies with the requirements for a notarial will that is executed by a notary can be deemed a notarial will, thus avoiding probate after you pass away. And a lawyer or notary are the only people who can give you legal advice as you create your will.
Some people may benefit from advice on a complicated matter (i.e. what to consider when dealing with foreign property, how to address complex business needs, etc.) and might need customized language beyond what is offered on Willful.
Some people liken it to doing your taxes. If you have a straightforward return to file, you can choose to use:
- Tax forms provided by your provincial government to mail in yourself
- Free or paid tax software you can do your own taxes and digitally file yourself
- Visit an accountant or tax specialist to have them file on your behalf
While each method is valid, each option depends on the budget, needs, concerns, and comfort level of the individual. Many people will not need to seek a tax specialist, which is similar to those who need a will and other estate planning documents.
Other Common Questions About Wills in Quebec
What Is Probate, And When Is It Required?
Probate is the process of a will being accepted as valid by the court system. It is initiated by the will’s named liquidator, or any interested party, “applying for probate” to the Quebec court system. There’s a simple rule for whether probate is required: if you execute a notarial will, probate is not required. If you have any other type of will, probate is required.
The probate process is designed to confirm whether a will meets the formal requirements set out by the Quebec Civil Code. The Civil Code dictates that notarial wills are not subject to probate.
Notarial wills are the most common form of will executed in Quebec due to the fact that they don’t require probate when you pass away. This saves time, since your liquidator can immediately start administering the estate vs. having to wait up to several months to receive a grant of probate, and it saves legal fees of up to $2,500-$3,000 for the probate process. Also, notarial wills are registered with the Chambre des notaires, so they cannot be lost or destroyed.
What Happens If Someone Brings A Claim Against My Will?
In addition to being asked about the legal validity of our wills, we often get asked whether claims can be made against your estate after you pass away. It’s important to note that whether your will is legally valid when created and whether there are any valid claims against your estate are two separate things. Any will—regardless of whether it’s written by you on a piece of paper, or created by the most seasoned estate lawyer in Canada— can have a claim brought against it. It’s up to the judge who is evaluating that specific will to determine whether it reflects your wishes and whether to uphold it.
There are certain people who may have a support claim against your estate - namely your spouse or children (not including common law spouses) - and in that case, a successful claim would supersede what you’ve outlined in your will. If that’s the case, they would be treated as a creditor - much like a bank or anyone else you owe money to - and they would receive payment prior to your heirs.
It is important to note that anyone can bring a claim against a will, but the onus is on them to prove that their claim is valid.
Can You Contest A Will In Quebec?
Contesting a will includes undertaking a legal proceeding in which arguments are made in court to have the will, or a specific aspect of the will, found to be invalid. A claim must be initiated by a person who believes it is invalid or unlawful. What’s important to note is that any will can be contested, regardless of how it was prepared.
A will prepared by the testator (the author of the will) that is either handwritten (holographic will), created using a store-bought will kit, an online platform, or yes even one prepared by a lawyer can all be contested if someone chooses to do so. What most people worry about when preparing their will is whether their wishes will be overturned by the courts.
Contesting a will involves a lot of time, money and evidence to support the claim being made. Every case is different, but the most common reasons for contesting a will include:
- Undue influence - This is when someone believes a person (or persons) has pressured the testator (author of the will) to change their will. This occurs most often with vulnerable people like the elderly or those with a cognitive impairment.
- Lack of mental capacity - This is when someone believes that the testator is unable to make their own decisions due to an illness, disability, or mental health problem
- Problems with the will itself - This is when someone challenges the validity of the will because of contradictions in language or other issues.
- A family member is cut off - While this is not grounds to contest a will, a cut-off family member may contest a will. This is different than a spouse or child who may have a valid claim against the estate as outlined in the previous section.
- Interpretation of the will - This is when a clause is vague and gives rise to one or more conflicting meanings.
- Fraud or forgery - Also falls under undue influence. This is when someone uses lies, threats, etc. to get the testator to change the way they distribute their assets or forges their signature to benefit from the estate.
- Illegal provisions - Including a clause that is not allowed by law.
When someone decides to contest a will, it doesn’t mean it will be overturned. It can take the court a long time to look at all of the facts and make a decision.
While the majority of wills are upheld, if the court decides a will is invalid it can either put an earlier will in place if one exists or distribute assets according to government intestacy laws.