Wills
When a person dies, the first step that the succession of that person has to do is to verify if that person has made a will. Therefore, the heirs of the deceased have to make will research. In Quebec, this will research is done by filing applications to the two will Registers in Quebec: the will Register of the Chambre des notaires (the notaries professional corporation) and the will Register of the Barreau du Québec (the lawyers’ professional corporation).
The will is the document in which a person expresses his wishes as to what will happen after that persons death, namely:
- Who will inherit the assets of the deceased and what percentage and under which form;
- Who will be appointed and will act as a liquidator of the estate;
- Who will act as a tutor or as an administrator in the event that they are minor children are heirs in the estate;
- What are the wishes of the deceased regarding funeral arrangements and burial;
If there is a will and you are appointed as a liquidator, you have certain legal obligations to fulfill, namely, the will research, as mentioned here above, the publication of notices in the Public Register (Régistre des droits personnels et réels mobiliers, RDPRM) and in a local newspaper and even to file legal proceedings with the Court, if necessary.
The will is a written document that a person prepares while still sound of mind and that comes into effect with the person’s death. In a will a person determines who are his (her) heirs and in what proportion and under which form the person’s assets will be distributed between the heirs.
Practice Areas
Nobody has an obligation to make a will, but in the event of absence of will, then it will not be according to the person's wishes that the distribution of the person's assets will be done, but according to The Law.
As an example, person “A” is married with person “B” and “A” and “B” have two children “C” and “D”. If “A” and “B” separate, but do not divorce, and if “A” hasn’t made a will, then in the event of death of “A”, the assets of “A” will be distributed as follows: one third (1/3) will be inherited by “B” and two thirds (2/3) will be inherited by the children “C” and “D”.
The wishes of “A” can be different from what The Law “says”. For example, if “A” has formed a new couple and would have wanted that all or part of the assets is inherited by the new spouse and the children “C” and “D”, but in the absence of a will, the succession of “A” will be settled according to The Law.
In the will, the person also appoints who will be the liquidator of the estate, the person that will be “in charge” to insure that the wishes of the deceased be fully and correctly executed. The liquidator of the estate is normally one of the heirs, but not necessarily, the liquidator could be also a close friend, a person in which the author of the will has full confidence.
The will can be made with a lawyer or with a notary, even the will can be handwritten. If the will is made with a lawyer or with a notary, that will has to be registered with the respective professional order, with the Barreau du Quebec or with the Chambre des notaires du Québec. One of the obligations of the liquidator is to make will research with the registers of the Barreau du Québec and the Chambre des notaires du Québec. The certificates of research will indicate the name of the lawyer or of the notary who has prepared the will and when the will was made.
The will is a secret (confidential) document et it doesn’t come into force until the moment of its author’s death.
The registers of the Barreau du Québec and of the Chambre des Notaires du Québec do not have copies of the wills, but only the information regarding the author of the will, the lawyer or the notary who prepared the will and when the will was made.
A lawyer or a notary, before issuing a copy of a will that he has made, has to obtain a proof of death and also that the person requesting the copy has some interest in the estate, for example is an eventual heir, a close family member or close friend of the deceased.
A person can make several wills, because with the passage of time a person can change his (her) mind. It is generally the last (most recent) will that is the valid one because anyone is presumed sound of mind and presumably it is the last will that represents the last wishes of its author.
But sometimes the validity of a will can be contested by some heirs, for example if there are serious grounds to believe that at the time of the signing of the will, the person making the will was not sound of mind or was manipulated by a third party and the will doesn’t represent the person’s free and true wishes.
Me Robert Brankin can assist you to make a will, or to advise you and represent you if you are a heir or a liquidator of the estate in legal proceedings (for example for homologation of a will, for nomination of a liquidator, for contestation of the validity of a will, etc.).