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The last will and testament
Who will decide who inherits your possessions when you die? By making
a legal will, you decide.
Whether you have extensive assets or few possessions, you need to
make a last will and testament to ensure that your property passes
to the people you choose. If there is no will, the law will determine
who inherits your possessions, and how much each receives . . . Often,
the law does not opt for the solutions you would have chosen.
Your will is a written statement that you can change as often as you
like, in which you clearly state your last wishes, specifically concerning
your chosen heirs and legatees, the person you appoint as liquidator
of your estate, the age at which children who are minors shall receive
their inheritance, and who you name as their tutor. Instructions for
your funeral and burial may also be included in your will; however,
such instructions are better left with relatives or written separately
and kept in a known location, so that they are readily accessible.
By leaving a will, you can make it much easier to settle your estate,
simplify matters for your relatives, and ensure that everything goes
according to your wishes after your death. Your will is a highly important
legal document that lays the groundwork to settling your estate.
Types of will
Three types of will are recognized under Quebec law:
- The holograph will
This type of will must be handwritten entirely by the testator
and signed by him or her, without employing any mechanical means.
Forms, typewriters, and computers may not be used.
No witnesses are required for this type of will. It is wise to
date it, even though this is not an absolute requirement for its
validity.
- The will made in the presence of witnesses
This type of will need not be handwritten by the testator. For
instance, it may be typed by the testator or a third party.
The testator must nonetheless declare that the will is his or
her own, in the presence of two witnesses who meet certain criteria.
This type of will must be signed by the testator or by a third
party signing for the testator in his or her presence and according
to his or her instructions. Moreover, if the will is written by
a third party or using mechanical means, the testator and witnesses
must sign or initial each page of the will that does not bear
their signatures.
The testator is not obliged to disclose the contents of the will
to the witnesses.
- The notarial will
This type of will is prepared by a notary in accordance with legal
formalities. It is made in the presence of a notary and a witness
or, in certain cases, two witnesses. The date and place of the
making of the will are noted on it..
The notarial will has many advantages:
- There is no risk of the will being lost. Your legatees are
sure to find it after your death, because the original of your
notarial will is kept by the notary in a safe place where it cannot
be lost or destroyed.
- You benefit from the experience and advice of the notary, who
is basically a lawyer with experience in estate planning and the
drafting of acts. This avoids errors, ambiguities, and difficulties
of interpretation which could prove troublesome for your legatees.
Your notary's advice will help you not to forget anything, thus
simplifying the task for the liquidator of your estate.
- You minimize the chance that someone will contest your last
wishes, because the notarial will is harder to attack in court.
- Your will takes effect immediately upon your death, because
your heirs don't need to have it verified by the court or a notary.
If your will is not notarized, it will need to be probated by
a notary or the court, an expensive procedure that can delay the
settlement of your estate.
The Register of Wills kept by the Chambre des notaires du Quebec
The CNQ operates a registration system designed to protect wills,
the Register of Wills, which has been in existence since 1961. Since
1978, the benefits of the Register have extended to non-notarial wills
as well. Thus holograph wills and wills made in the presence of witnesses
can be recorded in the Register on the same footing as notarial wills.
However, they must be recorded by a notary (chosen by you), who files
your will in his or her minutes.
There are a number of advantages to recording your will in the Register:
- Confidentiality of your will is guaranteed, because only the
fact of its existence is recorded.
- It is easy to trace your last will after your death, eliminating
the risk of
its being disregarded or found too late in the process of settling
your estate.
- Recording your holograph will or will made in the presence
of witnesses removes the danger of its being destroyed, whether
accidentally or maliciously by someone who is dissatisfied with
its provisions.
If you opt for a notarial will, in addition to advising and guiding
you, the notary will record your will in the Register.
Should you still opt for a non-notarial will, tell a trustworthy
individual where it is kept, to ensure it will be found when the
time comes. It is also greatly to your advantage to give it to your
notary, who will file it in his or her official record for safekeeping
and then list it in the Register.
To verify the existence of a will following a death, ask your notary
or contact the CNQ Register of Wills directly, producing proof of
death.
Source : Me Joanne Désourdy, notary
779, Shefford Street
Bromont
(450) 534-2265
© 2005 - Les Résidences et jardins funéraires Bessette
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