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 Will writing service 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.

Tim Hewson

President and CEO at Canadian Legal Wills
Tim Hewson is one of the founders of LegalWills.ca.

He has over 19 years of experience helping people to write their Will and other estate planning documents. He has been interviewed by many of the major news media outlets including CTV, Global News, The Toronto Star, and other leading Canadian publications. He has also contributed to a number of financial planning books.

Throughout his career, Tim has written extensively on the subject of Will writing and estate planning.
Anonymous

21 thoughts on “Why we don’t support Québec Wills

  1. Mary Mary says:

    Hi my name is Mary , my mother died 2 months ago. My brother and his wife took her in 5 years ago. My mother was in a wheel chair and had alziemers . I have her will from 2001 in which she named me liquidator and the will states that all that my mother owns was to be split equally between her 5 children. After her death I was told by my brother who took her for 5 years that the will was changed and that everything was put under his name and we, the rest of the children were no longer beneficiaries. He has not shown us this new will and he took all the death certificate from the funeral home. He is not answeing our calls and we know in our hearts that my mother would have never changed her will to omit the rest of her children. My questions are first if I request a death certificate and do a will search…do I have the right to see the will if I am not beneficiary? Also since I have no proof that a new will exists can I go ahead with the will i have from 2001 and start the process of going to the bank to see if the accounts still exist? I’m afraid and confused of how I should handle all this. I believe my brother manipulated my mother to make changes yo her original will. Please help me. Thank you.

    • Canadian Legal Wills Canadian Legal Wills says:

      Hi Mary, I am very sorry to hear of this situation. You need to find the Will. Without a Will, your brother is simply stealing assets from the estate. I strongly recommend seeking the services of a lawyer who can represent you. It might cost a few hundred dollars, but it is the best course of action in your situation. Good luck.

  2. Jo Jo says:

    Hello
    My Father has a Will and Power of Attorney documents, they were both issued/created in Quebec. He now lives in BC. We need to make some changes to both documents, Is an addendum all he needs to do?
    Is his Quebec Last Will and Testament and Power of Attorney valid in BC.
    Jo

    • legalwills legalwills says:

      Hi Jo, we would recommend that he prepares new documents. Quebec work under a completely different legal system, so if your father needs to change his Will, we recommend that he just prepare a new one. The Power of Attorney laws are completely different between BC and Quebec….very, very different. We recommend that he prepares a new PoA under BC law rather than try and adapt a PoA written under Quebec law.

  3. Jo-Anne Jo-Anne says:

    I am the executor for my late sister’s estate. For 90 years she resided in QC, then for the last 3 moved to live with her only family in ON. She had a QC Notarial Will and her bank/investments only with one QC bank. She had no other assets. A QC notary tells me no probate necessary, however, the QC bank has other ideas. I must provide ON court probate document before monies will be released. It’s confusing, the more I read. It seems to me the bank does not trust me as the executor/beneficiary simply because of where I live .. and I know it’s not really that simple!! If my sister still lived in QC, there would be no probate..no matter where I live. I’d like to feel I am learning something but honestly more and more confused. There are no situations exactly the same. It seems there is no way to avoid probate. Is it possible that because my sister had no ON assets, when the document is filed in ON there would be no probate to be paid? Thanks for reading this.

    • legalwills legalwills says:

      Hi Jo-Anne, thank you for the question, and sorry for the delay in responding. We see this a lot; there is the legal requirement for making a valid Will or Power of Attorney, and then there is the bank’s internal rules. A bank is always extremely wary of releasing the contents of an account because they don’t know whether the Will that you have is really the “Last” Will and Testament (or whether one was written after it). They don’t know whether the signing procedure was correct, or whether there is a challenge to the Will. A bank is not in a position to go through this validation process, and so rely on the probate courts. They usually require what is known as a “grant of administration” which is released by the probate courts. This document certifies the Will as the legal Last Will and Testament and gives the Executor the authority to act as the estate administrator. Banks will accept this court approved “grant of administration”. To be honest, we don’t know too much about the Quebec processes, and you are absolutely correct; a Notarial Will in Quebec does not legally have to be probated. But if the bank want it to be probated before they release the funds, I’m not sure you have much choice in the matter. The bank may even have a special policy for out of Province Executors (but we are just speculating). But it is a cautionary tale for others; probate is almost always required in Canada, even in Quebec, unless all of the assets are jointly held and are just passing to the surviving joint owner of the assets.

  4. Marilyn Marilyn says:

    I was married & living in Quebec when my husband & I drew up our wills.

    We are now separated & I’m living in Alberta but my ex still lives in Quebec.. Can I draw up a do it yourself Last Will & Testament & will it cancel out the one I previously did while married & living in Quebec?

    • legalwills legalwills says:

      Hi Marilyn, certainly using our service. If you prepare a Will at LegalWills.ca it will automatically cancel your previous Will.

  5. Louise Sala Louise Sala says:

    my mother has a will made by a notary in quebec and it is in french, she now lives in ontario and has the start of dementia. is there any way to have that will translated into english and can she even do a new will for ontario. and if the will stands what does that mean for her children who also live in ontario

    • legalwills legalwills says:

      This is a tricky one, and you probably should seek legal advice. If your mother has dementia, then it is difficult for her to prepare a new Will. It could always be challenged on the basis that she didn’t really understand that she was preparing a Will. So she may be stuck with the Will that was previously prepared by the notary. You should probably speak to an estate planning lawyer in Ontario.

    • Sharon Thurston Sharon Thurston says:

      if the terms of her will haven’t changed language is not a problem. It is registered in Quebec and will be available and legal anywhere. If she has dementia doubt you can have her change the content now.

  6. Andre Allard Andre Allard says:

    I moved from Qc to BC 1 year ago and want to write a new will. If I use a will that is not legal in Qc, can I still name a family member living in Qc as an executor ? I also still have a bank account in Qc. Is that a problem ?
    Thanks.

    • legalwills legalwills says:

      There are no residency requirements for an Executor of a Will in BC. Obviously, the Executor may have to travel to BC to administer the estate, but they still qualify as an Executor. The bank account shouldn’t be an issue unless there is a significant amount of money in it.

  7. cindy cindy says:

    My father created an estate will prior to his death in 1968. Did any civil law rules change the rights of inheritance? My brother has died 20 years ago and i want his daughter to inherit his share. My mother has just recently renounced ownership of the estate and it is being disbursed amongst family

    • legalwills legalwills says:

      Hi Cindy, thanks for the comment. There’s not really enough information here to provide you with proper guidance. With issues like this, we would always recommend that you seek legal advice. From your question, I’m not really sure why your father’s 1968 Will is related to your brother’s daughter’s inheritance. It seems that there is some complicated family dynamics here.

    • legalwills legalwills says:

      I think you are referring to a Holographic Will made under Quebec law. I’m not sure why you would deposit it with a Notary Public in Ontario. This is one of the issues with the Notary Public system in Canada, it means very different things in different Provinces. The procedure for becoming a Notary is different in each Province, and the powers granted to a Notary vary quite widely even for non-Quebec provinces. In Ontario, I don’t think you can “deposit a Will” with a Notary.

  8. LegalWills LegalWills says:

    Hi Michelle, I am very sorry to hear that your husband took his life…it is very sad. With respect to your question, you have what is known as a holographic Will, which is legal in some Provinces and not others. Holographic Wills are accepted in Ontario, Quebec, New Brunswick, Alberta, Newfoundland, Manitoba and Saskatchewan.

    However, the Will could potentially be challenged if it was felt that your husband did not have testamentary capacity. Although the net result of this would be that he would be deemed to have died without a Will, and again, depending on the Province, you would be the main beneficiary.

  9. michelle michelle says:

    My question is my husband died of suicide.he wrote a will on a piece of paper .no whitness. Is it legal it’s signed and dated.

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