We get a lot of questions from customers in Quebec about online wills — how are they different? are they the right fit for me? and…. are they really legal according to Quebec law?
To help you decide if an online will is the right fit for you, we’re addressing all the common questions around online wills in Quebec and how you can make your own.
What is an online will?
First things first, what exactly are we talking about when we refer to an online will? At Willful, an online will is a document that we help you create by asking you relevant questions about your life situation. Once we have all the information about your end-of-life wishes, we create a customized legal last will and testament for you.
What are the laws about online wills in Quebec?
Our platform adheres to all local legislation, and we help you create a legally-valid will in Quebec. 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). It’s important to understand the nuances in local laws.
What are the different types of wills in Quebec?
Before we address what makes a will legally valid, it’s important to understand the different types of wills in Quebec. There are three main types of wills in Quebec, and it’s important to understand the difference and how that affects the probate process after you pass away.
Holograph will
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.
Will made in the presence of witnesses
A will in front of witnesses is also sometimes called an 'attested will'. It can either created using a platform like Willful, through a paper will kit, or created by a lawyer. It does not need to be notarized. A will in front of witnesses will need to be probated after you pass away. If you create a will in front of witnesses with a lawyer, it will be registered with the Barreau du Quebec. If you create a will in front of witnesses using Willful’s $99 plan, we provide free registration on CanadaWillRegistry.org.
Notarial will
Notarial will is 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 a notarial will is known as 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. Read more about notarial wills in our guide to notarial wills.
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 handling the probate process. Also, notarial wills are registered with the Chambre des notaires, so they cannot be lost or destroyed.
What makes a will legally-valid in Quebec?
Now that you know the different types of wills, we can outline what makes each type of will legally-valid. Below is the criteria for what makes a will legally-valid in Quebec,
Any type of will:
- 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
Holograph will:
- Written entirely in your handwriting without any mechanical process
- Signed by you
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
- 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
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 states that a will has to be drafted by a lawyer or notary. As long as you meet the conditions above, your will is legally-binding.
What are the benefits to an online will platform?
The benefits to an online will platform like Willful are:
- Cost - a fraction of the cost of visiting an estate lawyer or notary
- Convenience - you can create your will at home or at work without having to make an in-person appointment or work around someone else’s schedule
- Time - once you’ve made key decisions (your liquidator, tutor, legatees), actually using a platform like Willful to create your will online takes less than 20 minutes, and you can do it at a date and time that’s convenient for you
- Digital notarial wills - Willful is the first company to offer completely digital notarial wills - create your notarial will on our platform, and meet with our partner notary virtually to execute the document
- Simplicity - if you have a simple estate, you may not need to visit a lawyer or notary (in many cases)
Who should use an online will platform like Willful?
Willful may be a good fit if:
- You own property in Quebec
- You have assets/investments in Quebec
- You have a child or children
- You have a pet and want to assign a guardian and/or leave a part of your estate to that guardian for their care
- You want to leave specific gifts (for example art or jewelry)
- You want to leave a cash gift or percentage of your estate to charity
- You’re single, legally married, divorced, or in a common law relationship (if you’re separated, there are complexities that may require visiting a lawyer)
- You don’t have any complex “if this then that” scenarios - you have several legatees you will split the estate amongst, but don’t need to create any unique stipulations
Willful is ideal for people with simple situations. If you’re not sure if your estate is simple enough, reach out and we’ll be happy to discuss if we’re the right fit - and we can direct you to our partner law firm or notary if your situation is too complex for our platform.
Other common questions about online wills in Quebec
Which situations add complexity, and may require speaking with a lawyer, tax specialist, or financial advisor?
There are some life situations and wishes that add complexity to your will. Here are some examples of situations that would benefit from assistance from a lawyer, tax specialist, or financial advisor:
- You have assets outside Canada (there are tax implications, and one may want to create multiple wills in different jurisdictions where assets are held)
- You have an out-of-province or out-of-country executor (they may be required to post a bond against your estate, and there can be major tax implications)
- You’re separated but not divorced (a separation agreement should address what happens if one spouse passes away, and it should work in tandem with a will)
- You require the creation of a complex trust (eg. spousal trust, trust for a dependent with a disability) - Willful only creates a simple testamentary trust for minor legatees
- You want to appoint joint liquidators or a corporate liquidator
- You want to leave conditional gifts (for example “if this happens, then that person gets their gift”)
- You have complex business interests (Willful includes a carry on business clause, which allows your liquidator to act on your behalf in relation to your business interests, but it doesn’t allow for any custom succession planning or the creation of a dual will for tax purposes)
- You wish to add free-form wishes or text
- You want to disinherit someone from your will
- You want or require legal advice
- You want to set up specific or unique rules around your minor child’s trust (for example Willful allows you to dictate at which age they will receive their inheritance, but if you’d like to create a tiered payout structure, you would need to visit a lawyer or notary)
- You have a blended family - Willful may not be right for people with blended families, as even in the most straightforward of cases (i.e. passing to spouse, then splitting everything amongst all children of both spouses) there may need to be special considerations made
- You otherwise have a complex estate
Can someone bring a claim against my online will in Quebec?
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 legal 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.
If I make updates to my will, what do I do after I make the changes?
No matter how your will is created, you can and should keep it updated to reflect your current wishes. Life events like the birth of a child, marriage, divorce, or changes to legatees and liquidators should prompt you to review your will.One of the major benefits of online wills is ease of updates. If you update your will you will need to print, sign, and witness your new will. This revokes any previous will, and it’s best practice to destroy any previous versions. Note that our Willful Notarial will plan only comes with the initial execution/registration by a notary.
Can I store my will online in Quebec?
Yes! With Willful’s Notarial plan, your will can be created, sign, and stored digitally by our notary partner due to COVID-19 emergency orders. We guide you through creating your document, and connect you with our notary partner to electronically sign your document. The notary then registers and stores your document online. Voila!
If you purchase Willful’s will plan, you’ll need to grab a pen because any non-notarial will cannot be signed electronically. You will need to print and sign a paper copy of your will, and ensure that two witnesses sign it as well. You may sometimes hear the term “wet signature” which just means a signature that needs time to dry or is signed in ink.
If you reside outside of Quebec, learn more about Online Wills In The Rest of Canada.
Finishing your online will during COVID-19 in Quebec
Quebec law requires that in order for an attested will (Willful's $99 will plan) to be legally-binding, the will must be a physical, printed document that is signed by you, and signed by two witnesses in your presence.
Current Quebec emergency orders allow for the digital execution of notarial wills. If you purchase a notarial will through Willful’s Notarial plan, you can execute it fully online without having to get together with witnesses, or see a notary in person.
Understandably, finalizing your will may be a challenge as you follow the Canadian government's recommended measures for COVID-19 prevention (for example, physical distancing).
Here are some useful resources to help you finalize your Willful will while minimizing contact with your witnesses:
