Why we don’t support Québec Wills

I don’t get it….you say you are Canadian Legal Wills, but you don’t support Québec. Québec is a part of Canada you know…

Whenever we receive any kind of feedback, we always do everything we can to address the issue, but the support of Québec Wills is a really tricky challenge.

Quebec Wills

Background to Québec Law on Wills

To provide some background, Québec law was established around the middle of the 17th century. Louis XIV decreed that the laws of Québec would be based on the laws of Paris which were a variant of “civil law”. Although the laws changed a little in the years that followed, the Québec Act of 1774 reinstated the Civil law system for the Province of Québec even though it had since been placed under British rule. When Canada was officially created in 1867 all Provinces adopted the British “Common law” of English origin while Québec retained their “Civil Law” derived from the Napoleonic code.

Since 1994, estate planning law in Québec has been guided by the Civil Code of Quebec, and particularly the book on Successions. Many of the components used in Estate planning are similar in concept the the rest of Canada, but there are many different terms and expressions used (incidentally Louisiana have different laws than the rest of the US for the similar historical reasons).

The structure of a Will

The basic structure of a Last Will and Testament in any jurisdiction is the same. The document;

  • Identifies the person creating the Will
  • revokes all previous Wills
  • Names a person to carry out the instructions in the Will
  • Describes the distribution of the estate
  • Names guardians for minors if applicable and sets up trusts for those minors
  • Has a signature page with space for two witnesses to sign

This is why in most jurisdictions a Will handwritten on a blank piece of paper is perfectly acceptable. If these key components are included, then you have a valid Will, but it may not necessarily be a well drafted document.

Because the key concepts are the same in every jurisdiction, there was an attempt to harmonize laws across jurisdictions by creating an “International Will”. Most jurisdictions accept an international Will, but again, this type of document would lack some of the detail required of a very well written Last Will and Testament – you would likely be missing some of the detail required including trusts for minors, alternate provisions, residuary clauses, guardians for minor children and powers granted to the trustee.

Key differences in Québec Wills

The key differences are in the limitations on what can be included or excluded from a Will, and also in the wording of the clauses. So much so, that a Will written for Québec ends up looking dramatically different than a Will written for any other Province in Canada. Our services at LegalWills.ca do change from Province to Province to take into account things like age of majority, and our help text varies when describing things like the effect of marriage and divorce on the status of a Will. But Québec law is so different to the rest of Canada that our service, and particularly the help text would effectively have to be completely re-written.

Types of Québec Wills

One of the most significant differences in Québec law is the concept of a Notarial Will. If a Will is written with a notary and signed by one other witness no probating of the Will is required. The notary public system and use of Notaires is unique to Québec and their powers are different to the rest of Canada (actually, the qualifications and responsibilities of Notaries varies quite significantly from Province to Province).

Two other types of Wills are allowed in Québec which more closely match the rest of Canada. The holographic Will, written entirely in the handwriting of the testator, is accepted in most Canadian provinces including Québec. This type of Will usually doesn’t have to be witnessed and so is the fastest approach to preparing a Will. However, it is not generally recommended because it is actually very difficult to write a Will starting with a blank piece of paper with no legal training.

The third type of Will accepted in the Province of Québec is the “Will Made in the Presence of Witnesses”: sometimes called a “Will following the form derived from the laws of England”. This is the closest match the the standard Wills that are created throughout the other Canadian Provinces.

Despite its similarities, there are differences, particularly with some of the terms used. In a Québec Will,

  • Guardians are called Tutors
  • Beneficiaries are called Legatees
  • Executors are called Liquidators
  • Estate is called Succession
  • Codicil is called a modification

Creating your Legal Will in Québec

Residents of Québec still face the same challenges as the rest of Canada; it can be expensive and inconvenient to prepare a Will, yet every adult should have one. Some services are popping up to address this need, but we haven’t seen anything offered quite to the level of the service at LegalWills.ca. Most services offer a variety of blank forms, which end up being somewhat limited in their capabilities and usually lack the error checking of an interactive online service.

We have reviewed a few different services offering do-it-yourself Wills for residents of Québec and the best we have found is at QuebecWillKit.ca . It isn’t an interactive online service like the one at LegalWills.ca but it does offer an interactive downloadable form that supports most family situations.
The same principles apply as with our service; If you have any complexity to your family situation we would recommend that you seek legal advice and pay for a legal professional. However, if your family situation is somewhat straightforward and you need a Will, then we would suggest that you take a look at the product available from QuebecWillKit.ca.

Dying without a Will in Canada

If a Canadian dies without a Will, they have left a bit of a mess for their loved ones, and sadly missed out on an opportunity to distribute their assets in a meaningful way. Instead of recognizing friends or organizations that have made an impact on their life, they have left all of the planning to their Provincial government who have already decided how the assets will be divided. It may come as a surprise however, to learn that every Province is different and that there are some very inaccurate assumptions. In this post we will run through a few scenarios, and highlight some Provincial differences.

Dying without a Will

Let us start with the most common misconception;

If you are married, then your entire estate will go to your spouse.

In all Canadian Provinces, if you have no children, then this is indeed that case – your spouse will receive everything. Even in this situation, it is advisable to have a Will in place because the process without a Will can be delayed by as much as a year. As soon as you have children though, the distribution becomes very convoluted.

If you have one child then the first thing that will happen is that an estate administrator will be appointed, and hopefully the spouse and child can agree on this. Then the estate will be distributed according to Provincial law. In Ontario the spouse will receive the first $200k, and then the spouse and child will equally split everything above $200k with the child receiving all of their share at the age of 18. In BC, the spouse receives a “life interest” in the home, the first $300k and the remainder divided equally between spouse and child, with the child receiving their share at 19. In Alberta and Manitoba the children receive nothing.

If you have a spouse and more than one child, the spouse receives one third of the estate above the $200k or $300k with the remainder shared between however many children there are. Again, in Alberta and Manitoba the children receive nothing.

If you do not have a spouse or child, then the order of inheritance will be in order; parents, siblings, nieces and nephews. If there are no relatives, then the estate will be passed to the government.

Common-law spouses and inheritance

But what if you are not married, and living as a common-law couple. Well, if you do not have a Will then you should hope that you live in BC, Saskatchewan, Manitoba, NWT or Nunavut. If you have lived together for more than 2 years in a “married-like” arrangement then in these Provinces or Territories, then you will receive the same rights as a married spouse, however, in all other Provinces including Ontario, you will receive NOTHING (unless you can make a claim to the courts as a dependent, which can be costly and time-consuming). But even if you live in a province that recognizes common-law relationships, don’t be surprised if other family members put up a fight.

The problem of dying without a Will

Leaving the distribution of your estate to Provincial laws is a risky if not, irresponsible approach. Here are some key powers that a Last Will and Testament will give you.

  1. Writing a Will allows you to decide who receives which parts of your estate, including allowing you to include friends, charities or organizations.
  2. It minimizes family disputes over perceived entitlements
  3. It allows you to name an Executor or Trustee to take care of the administration of the estate
  4. It allows you to protect a common-law spouse
  5. It allows you to determine the ages at which minors receive their inheritance
  6. It allows you to name a guardian for your minor children.
  7. It allows you to create alternate plans in case you are involved in a common accident.

As you can see, there is never a good reason to not write a Will, but the task is often put-off because it is expensive or inconvenient. We are trying to address this at LegalWills.ca by helping you to write your own Will, from the comfort of your home, for only $34.95. The whole process takes about 20 minutes.

Once you download and print the document, just sign it in the presence of two adult witnesses and you will have your fully legal Will.

 

 

Why you need a Last Will and Testament

The statistics still show that over 65% of adults in Canada do not have an up-to-date Last Will and Testament – even though most people know that they need one. Here are the top ten excuses for not having a Will, and we will explain why everybody should take the time to prepare their Will write now.

Write your Will

1. Everything is going to my spouse whether I have a Will or not

In reality, there is not a single Province in Canada in which you can guarantee that this will be the case. Without a Will, the distribution of your estate is determined by “intestate law”, which follows a rather complicated flow depending on your family situation. What makes it more complicated is that no two Provinces are the same. In most Provinces, if you are married with children, your spouse will not receive the entire estate.

2. I have a Last Will and Testament, I did it 20 years ago

Wills don’t usually last 20 years. Legally a Will is valid until it is destroyed or in most Canadian provinces a Will is cancelled if you get married. However, it is unlikely that the content of your Will wouldn’t need to be changed. You may have a new child, or if you already have children, they may become adults or have children of their own. You may have named an Executor who has become too old to perform the task. You may have worked with an organization that you now wish to include in your Will. There are a number of reasons beyond the accumulation of assets that may prompt you to update your Will. The advantage of using LegalWills.ca of course is that you can update your Will any time you wish as often as you need to.

3. I’m not worth anything. I’ll write a Last Will and Testament when I’ve accumulated some assets.

You are not writing a Will to come into effect today, and the reality is that you have no idea what your estate will be worth after you have died. A well written Will would take into account the growth of your estate over time, so even if your Will came into effect in 25 years time, it would still likely work for you. More importantly, if you died as a result of an accident and somebody was found negligent; your estate could be worth significantly more than at any time in your life.

4. I’ve told everybody what I want to happen. I don’t need to write it in a Will

This is one of the most common causes of a family fight over assets. People feel that they are entitled, or have been promised certain possessions or assets, when in fact a verbal promise is meaningless in law. If a family member thinks that they have been promised some money, only to discover that legally they have no claim, it will almost certainly cause a family rift

5. It’s nothing to do with me. I’ll be dead anyway, I’ll let somebody else sort it out

You are probably not aware of the size of the mess that you will be leaving your loved ones if you do not have a Last Will and Testament. We have frequently seen situations where close families stop talking to each other after a dispute over an estate. Nobody will have been appointed to take care of the estate, and the family could start fighting over your possessions. Furthermore, your Will is actually a powerful tool that allows you to recognise people or organizations that have made a difference to your life. It is your last opportunity to do something charitable and make a difference. It would be a pity to let that opportunity pass you by and let the government decide how your estate will be split up.

6. I’m too young to write a Will

There are a number of inherent problems in waiting until you are about to die before you write your Will. Most obviously, you probably don’t know when that moment is going to happen. Most well written Wills are to some extent “future-proof” and they can certainly be updated throughout your life as circumstances change. There is no advantage whatsoever in waiting until you are older to write your Will, but some major issues that arise if you die without a Last Will and Testament.

7. I can’t afford it at the moment

This comes up a lot because people are quoted $600 to $1,000 to prepare a Will, and then quoted the same for each update. However, there is actually no legal requirement to use the services of a lawyer to prepare a Will. If you need legal advice, we would recommend that you find a lawyer, but the vast majority of people do not need legal advice when preparing their Will. For example, if you want your entire estate to go to your spouse, and then if something were to happen to the both of you, then everything to be shared between your children, it would be unnecessary to pay for expensive legal fees. An identical Will can be prepared using our service for $34.95.

8. It’s a pain to find a lawyer and set up an appointment. I never have the time

It is rare that a lawyer will make house-calls, even for their $800 fee. Services like the one at www.legalwills.ca are addressing this issue by allowing you to prepare your own Will, at a time that suits you, from the comfort of your own home. You can prepare your legal Will in your pajamas tonight before you go to bed if you wish.

9. I used a kit. I’m good.

The most significant concern with blank form kits that you buy from a stationery store is that they give the impression that you have taken care of everything. But it is actually much more difficult than you think to cover all scenarios with a kit, which is usually not much better than starting with a blank piece of paper. Our Wills typically include about 25 clauses and are 7-8 pages long. Some kits that we’ve seen are two pages and include about 5 clauses. You are likely to have missed residuary clauses, powers granted to the trustee, trusts for minors and countless other critical clauses.

10. I find the whole idea of writing a Will confusing. I don’t even understand the most basic terms that they use and I don’t have time to learn.

Writing a Will is actually far simpler than a task like filing your taxes. Our service at LegalWills.ca guides you through the process step by step and explains the terms as you answer each question. You will see definitions for key terms like Beneficiary, Executor, Trustee, Testator, Residual estate, and be provided with simple explanations for the signing process. You do not have to have any legal training to prepare your own Will, and hundreds of thousands of people have already created their Will through our service – If they can do it, so can you. If there is anything that you are unsure of, you can send us an email or call us and we are very happy to help.

There is never a good reason to not have a Last Will and Testament in place, but there are plenty of serious consequences to dying without a Will. The whole process takes about 20 minutes and costs $34.95. It’s a task that everybody puts off for another day, but using our service, you can complete your estate planning documents today.

 

New home for our blog

This is now our fourteenth year of offering our Wills service at LegalWills.ca so we have decided to refresh the look and feel of our site. Our website and service are now fully responsive; as well as looking more modern, it is fully functional on all devices including your phone and tablet.

Since August 2010 we have been offering information and entertainment through our blog at legalwills.wordpress.com. There are well over 100 articles there, but with our newly designed site we have decided to migrate our blog over to LegalWills.ca.

So we are starting afresh, but hopefully it won’t take us long to share another hundred or so articles with you.