Estate Law
Capacities & Persons Law

Wills and protection mandates clarifications

The different types of wills

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Notarized Will

If you have not yet consulted a Notary to establish your last wishes, what are you waiting for? Your will is the most important document to settle your estate. Such a document clearly names an heir, a liquidator (executor) as well as specifies the latter’s duties and obligations. An original copy of your will is securely stored and can be retrieved at any time in the event of your death thanks to the Register of testamentary dispositions and mandates. This is clearly the way to go!

Does your witness stand to inherit?

Will and Testament made in the presence of witnesses*

Nothing’s stopping you from typing up your last wishes on your computer, free of charge! Two individuals must sign the document as witnesses. One of your witnesses will have to sign a solemn declaration attesting that he signed your will at the same time as you did. This type of will is recognized by the Civil Code of Québec (article 727).

However to be considered enforceable, the law requires that your will made in the presence of witness be probated by the Superior Court of Quebec (this is when you start paying!) Have you put any thought in what would happen if one of your witnesses passes away before you? Furthermore, if you haven’t spoken to your loved ones about this type of will and there is no safely guarded copy of your document by a third party, as is the case with a notary, it may be lost forever.

Finally, did you know that if your witness is also one of your heirs that person won’t be able to inherit! For all these reasons, it’s essential to consult a Notary instead of opting for this type of will.

*Please note that our office does not recommend this type of will and the above is only for informational purposes.

A will drafted informally on your kitchen table; beware, for results are not guaranteed!

Holograph will*

Yes it’s true; you don’t even need a computer or a form to fill out. You can write out your last wishes on a simple piece of paper. This type of will is also recognized by the law. However, in order for this kind of will, also known as a holograph will, to be enforceable, it must be probated by the Superior Court of Quebec. Finally, you will need to locate a friend that recognizes your writing and signature and have him sign a solemn declaration attesting this fact.

*Please note that our office does not recommend this type of will and the above is only for informational purposes.

What is a mandate of protection

Have you chosen the right person to take care of you and your affairs?

The mandate of protection (“often known as living will”) allows you to choose a person who will take care of you and your assets, in the event you become mentally incapacitated due to sickness or age. Your Notary will be able to guide you in selecting your mandatary. Don’t let the court make this decision for you. Those who have a mandate of protection will still need to have the document probated by the Superior Court of Quebec for it to be enforceable. This procedure is mandatory in order to ensure your personal protection, the management of your property as well as to exercise your rights, regardless of whether your level of incapacity is deemed partial or total, temporary or permanent. Have you been designated as a mandatary? In that case, you should consult a Notary!

For more information, consult the Chambre des notaires du Québec web site: : [French only] [French only]

How your notary can help you

The redaction of the will and the mandate of protection in case of disability is important. Your notary is your legal advisor, he can help you.

Notarized will

Do not neglect the writing of your will, this document must be specific to make sure that your last wishes are respected. Your notary takes care of the writing of your will as well as the preservation of the original copy of it in a safe place, to ensure its traceability. A notarial will has several benefits. Firstly, it is clearly written, and it respects the requirements provided by the law. Secondly, a notarized will takes effect upon the death of the deceased, compared to other types of wills that must be verified by a notary or the court. Finally, a notarial will ensures the fulfilment of your wishes. Indeed, a will that is unclear or not complete can lead to conflict.

Notarized mandate in case of incapacity

Avoid several inconveniences by writing a mandate of protection with your notary. He also takes care of the conservation of the original copy. Indeed, in case of potential incapacity, you avoid the opening of a protective supervision, which requires time and money. In addition, the redaction of a disability mandate by a notary also makes the document difficult to contest. The notary can also consider your situation, for example if you have assets abroad, children’s, etc. In case of incapacity, you do not want the court to assign you a public curator you have not chosen. Your notary can help protect you and also protect your family and yours assets.