What is a will?
A will is a written document, almost always on paper (the law can allow for limited exceptions). After you die, it tells those you leave behind who will receive assets you owned at the time of your death and were able to bequeath. If you have minor children, it can also say who you’d like to be their guardian/tutor (to take care of them). It can also communicate other instructions, like your funeral arrangements.
In certain cases and considering particular circumstances, a person may have more than one will, each will dealing with different assets.
There may be assets not covered by a will – for example, where an asset is held jointly with a right of survivorship (not applicable to assets governed by Quebec law). Home ownership by spouses is often held in this way, so that the surviving spouse becomes the sole owner. Such assets, if going to a survivor, are not bequeathable, meaning they cannot be disposed of in a person’s will contrary to the interests of the survivor.
Why you should have a will
If you die without a will, by Canadian law you’re said to have died “intestate” which means there are no detailed instructions on how you want to distribute your property.
When this happens, each province/territory has its own rules on how a person’s estate will be administered and the assets distributed. This process can often be long, complicated and expensive. Family members and beneficiaries could dispute how assets are distributed and there could be problems accessing accounts, transferring or selling assets, and settling the estate.
When you should make a will
When you’re an adult and have property and/or assets, a spouse and/or children, you should make a will.
If you’re under the age of majority, you can only create a valid will if certain circumstances apply. Common examples include if you’re married, have children or are in the armed services and about to engage in hostilities.
In Quebec, there are very limited situations where you can make a will if under majority age. One of them is if you’re married.
Once you create your will, make sure you keep it somewhere secure such as a safety deposit box or a fireproof home safe. Make sure you tell your executor (known as liquidator in Quebec) and other members of your family where your will is stored.
If you have your will drafted by a lawyer, they may keep a signed original. In Quebec, if a lawyer drafts your will and is keeping the original or is asked to keep another type of will that the lawyer didn’t draft, the will must be registered with the Barreau du Québec. If it’s drafted by a Quebec notary, they’ll keep the original and register it with the Chambre des notaires du Québec.
Creating a will isn’t a one-time thing. When you accumulate new assets (like a home) or your life changes (like divorce or remarriage) you should update your will to reflect these factors.
Different types of wills
Attested (witnessed) will
In most of Canada, this is the most common type of will. It’s a formal, usually typed document, where the testator (the person who’s will it is) must sign the will in front of 2 witnesses, who then must sign the will in front of each other.
A witness should not be a beneficiary under the will. If a beneficiary is a witness, they will be disentitled to whatever was left to them under the will. Outside Quebec, if the spouse of a witness is a beneficiary, that spouse beneficiary will also be disentitled in most cases.
This is an entirely handwritten will, written and signed by the testator. You don’t need witnesses for this kind of will.
Holograph wills can be convenient, especially in emergency or end-of-life situations.
Notarial will (Quebec)
A notarial will is drawn up by a notary and made in the presence of a witness (often provided by the notary). A second witness is required in some cases (for example, when the testator is blind).
The will must indicate the date and place where it was made.
Once the will has been prepared, it’s read to you by the notary, so you’re sure it reflects your wishes. If you wish, it may be read in the presence of the witness.
Once the will has been read, it must be signed by you, the notary and the witness, in each other’s presence.
This really isn’t a will as it operates while you’re still alive. A living will provides specific advanced instructions on the type of medical care you wish to receive (or not receive) if you’re unable to convey your wishes. Anyone who makes a medical care/treatment decision for you must consider the living will before doing so.
People sometimes confuse a living will and a power of attorney (protection mandate in Quebec). Where a living will say what your medical care wishes are, a power of attorney often just says who will make decisions, either for property or personal care.
What is probate?
Probate is the court procedure to formally approve a will as the last valid will of a deceased person, and formally confirm the appointment of someone who’ll act as the executor (liquidator in Quebec) of the person’s estate.
Not all wills require probate. Generally, however, financial institutions and land registry offices require probate to confirm that the executor is authorized to receive the assets and money that belonged to the deceased person.
In Quebec, all wills (except notarial wills) have to be validated by a court or, if the will is not contested, by a notary.
Things that can make a will valid or invalid
Although regulations in provinces/territories may differ, in general and without going into all the requirements, to make an attested (witnessed) will valid, it must:
- Be written (typically by a printer) on paper
- Signed by the testator and 2 witnesses
- Include your basic information
- Indicate which of your assets are left to which beneficiaries
Holograph wills must be entirely handwritten and signed by the testator. They, too, must indicate the assets to be received by your beneficiaries.
If requirements are not met, invalidity of the will is the result, unless a court is able to ‘cure’ the deficiency. A court cure should not be counted upon.
A note about codicils
A codicil is an addition or amendment to a will that explains or modifies the original will without a complete re-write. It can be used when a there is a need for only a small alteration.
A codicil must be a separate document and made the same way as a will.
While it can be a convenient alternative to re-writing a will entirely, having too many codicils can be confusing. You should consult a lawyer or notary about making changes to your will to discuss how they’ll fit into your overall estate plan.
The affidavit of execution (not applicable for Quebec)
This is a form that’s required to prove the signature on the will is valid so the will can be probated.
For an attested will, the affidavit (or sworn statement) must be sworn by 1 of the 2 witnesses who signed the will by the testator.
For a holograph will, the affidavit must be sworn by someone who knew the testator, their handwriting and signature well, and can attest to the will and the testator’s signature.