It is important for everyone, no matter how young or old, to make a will. If you fail to do so, you will die “intestate” and the consequences for your loved ones may not be what you had hoped for.
If you do not have a will, the law of Quebec provides that all your property, following payment of taxes and debts, will be distributed to family members in accordance with rules set out in the Quebec Civil Code. If no family member can be found at your passing, everything becomes the property of “the state.” If you do have family, one third of your assets will go to your spouse and two-thirds to your children. If you have children but no spouse, your estate will be evenly divided between your children. If one of your children predeceases you, his share will go to his children. Relatives up to the eighth degree are eligible to inherit.
Many people don’t bother making a will because they believe everything will go to their spouse in any case so why pay the professional fees to have one made. This is a common misconception. Your spouse will only receive two-thirds the value of your estate. The remaining one third will go to parents, siblings, or cousins up to the eighth degree.
Another common misconception is the belief that if you have lived with someone as a couple for many years that person will inherit when you die. This is not necessarily so. If you are living common law, your spouse will not inherit no matter how long you have lived together. You must have gone through the legal procedure we refer to as “marriage” or “civil union” in order for your spouse to inherit should you die without a will.
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A will enables you to decide how and to whom your assets will be distributed at your death. It also provides you with a vehicle to name the person you want to administer your estate. In Quebec that person is called a liquidator; in the rest of Canada he is called an executor. This can be an onerous job as it requires taking an inventory of everything in your estate, paying all taxes and other debts you may owe, filing reports, advising all financial institutions with which you did business, filing government reports, advising all heirs of your death, liquidating your assets, providing an accounting to heirs, and obtaining the necessary government releases to permit the distribution of the assets to all heirs in accordance with the terms of your will.
If you have named no liquidator, your heirs can choose someone or the court can be called upon to name someone if they are unable to agree. The office of liquidator is an important and often difficult job. It is important to entrust it to someone you can rely on and someone you know is capable of fulfilling it.
There are three kinds of wills in Quebec: the notarial will; the will made in the presence of witnesses; and the holograph will. They each have a specific form that must be strictly adhered to.
Only a notarial will does not require probate (verification by the court) after death.
The will in the presence of witnesses can be typed or otherwise mechanically produced by the person making it, that is “the testator”, or by a third party and signed by the testator in the presence of two witnesses. The holograph wills must be entirely handwritten and signed by the testator. These are considered to be “essential requirements.”
For a will to be legally valid, it is absolutely necessary that it be drafted in accordance with the requirements set out by the Civil Code. If these “essential requirements” are not followed, the court may refuse to probate the will after death with the result that the abovementioned rules of intestate succession will apply.
Here is an example of what can happen: In a recent judgment, the will of a husband leaving everything to his wife and naming her as his liquidator was refused probate due to lack of proper form. The will had been drafted on a computer. The Civil Code requirement is that a holograph will be written by the testator and signed by him without the use of any mechanical process.
The judge was convinced that the will expressed “with certainty and unequivocally” the final wishes of the deceased. However, he followed previous judgments in deciding that this was not sufficient and that those final wishes had to set out in accordance with the requirements of the Civil Code. The will could not be probated either as a holograph will as it was not written out by hand, nor as a will in the presence of witnesses as no witnesses had signed it. This became an intestate succession with the result that the widow would have to share her husband’s estate with other heirs such as their children or the siblings or cousins of the deceased.
As you can see, the courts will hold the wishes of a testator to be superfluous when a will does not conform to an “essential condition.” Therefore, should you still decide to make your own will after reading this article, be sure to follow the form set out by the Quebec Civil Code. But preferably, consult with a professional, either a lawyer or notary. In the end, it will be worth the cost.