WILLS

No matter how little or how much property you may own, you want to be sure that it is distributed to the intended people after your death. It would be very comforting to know that at the time your loved ones are mourning your death, you will have done everything in your power to avoid problems. A will lets you choose your heirs and clearly outline your last wishes, including your desire or not to donate your organs and bodily tissues. If you do not make a will, the law will instead determine who inherits your property. A proper will is a guarantee that your last wishes will be respected. It will also make settling your estate (succession) that much easier.

WHAT TYPE OF WILL IS SUITABLE FOR YOU?

Although you may be aware that there are many types of wills, you may not know what they are. Our Quebec legal system recognizes three types of wills:

Notarial or authentic will

This type of will is made before a notary in the presence of a witness or, in certain cases, before a notary and two witnesses.

Holograph will

A holograph will is entirely handwritten by the testator and signed by him without the use of any mechanical process. It does not require the presence of a witness.

Will made in the presence of witnesses

This type of will does not have to be handwritten by the testator (it can be typed, for example). Testators must sign their wills, and have a third party sign for them in their presence and according to their instructions. A testator must declare that the document is indeed his will, before two witnesses meeting certain requirements. The two witnesses must also sign the will in presence of the testator.

If you choose to make a notarial will, it will take effect immediately upon death. But if your will is not a notarial will, it is subject to probate by the court after your death.

Notarial wills are not subject to probate because the law recognizes notaries as public officers, and allows them to confer authenticity on their wills.

A SYSTEM THAT HAS ITS ADVANTAGES

Conceived and created to guarantee that your last wishes are respected, the Register has definite advantages:

• It ensures the confidentiality of the will, since only its existence is registered;
• It facilitates the tracing of your last will after your death;
• It eliminates the risk that your will never comes to light or is found late in the settlement of the estate;
• It prevents the possibility that the will, even if in holograph form or made in the presence of witnesses, could be accidentally destroyed or maliciously done away with by heirs disappointed with its provisions;
• With these advantages, the Register greatly facilitates the discovery of your testamentary dispositions and accelerates the settlement of your succession;

SEVERAL GOOD REASONS FOR CHOOSING A NOTARIAL WILL

A will is an extremely important legal document: the settlement of your estate is based on it. It is therefore essential that the will be well drafted, complete, and above all, free of ambiguity. When you have recourse to the services of a notary, a lawyer with expertise in the planning of estates and drafting of legal documents, you can be sure that there will be no problems in the interpretation of your will. Your notary knows how important it is to choose the right words and he will formulate your last wishes in legal terms according to your instructions. He will also help you remember everything that should be included to make the settlement of your estate an easy task. Another advantage of a notarial will is that the notary will keep the original in a safe place, where it cannot be lost or destroyed. The notary also has your document entered in the Register of Testamentary Dispositions of the Chambre des notaires du Québec. The will itself is not filed in the Register, only the fact of its existence is recorded, thus maintaining confidentiality while making it easy to locate after your death.

Source: Chambre des notaires du Québec

MANDATES

MANDATE GIVEN IN ANTICIPATION OF INCAPACITY

Nowadays, people can personally determine who will take care of them and their belongings should they become incapacitated. The law allows any person of sound mind, the mandator, to appoint, in a document called “mandate in anticipation of incapacity”, the person who will ensure his well-being and the administration of his property and assets in the case of incapacity. The person entrusted with this task is known as the “mandatary”.

It is a great relief to know that a trustworthy, freely chosen person, such as one’s own spouse, brother, sister or close friend, will then be legally empowered to make vital decisions.

EXECUTION OF THE MANDATE

If you become incapacitated, your mandatary must ensure that the mandate becomes fully effective. This means proving your incapacity by means of a medical, psychological and social assessment, and establishing that your consent to the mandate is valid. The mandatary may do this by applying directly to the court for homologation of the mandate or, more simply, by presenting an application to a notary who has been specially certified by his professional order.

The notary will follow the procedure established by law, draw up the minutes of notarial operations and conclusions, and file the authenticated documents at the office of the court. The conclusions of the minutes must be confirmed by the court. Only after the mandatary has obtained a judgment of homologation or a judgment confirming the notarial minutes will he be able to assume the role of mandatary and become your legal protector and representative. As soon as the mandate has been homologated by the court, the mandatary becomes your legal protector and representative.

The mandate ceases to have effect when the court ascertains that the mandator has again become capable.

THE REGISTER OF MANDATES GIVEN IN ANTICIPATION OF INCAPACITY: MORE PROTECTION

Quebec notaries have access to a centralized registration system to ensure that all mandates are easily traced, thus guaranteeing that your wishes will be respected. Once you have signed your mandate before a notary, he will see that it is entered in the Register of Mandates Given in Anticipation of Incapacity kept by the Chambre des notaires du Québec. This system offers the following advantages:

• Any notarial mandate can be located
• Your last notarial mandate can be identified
• The risk, following incapacity, of a mandate’s being disregarded or belatedly traced is eliminated

Source: Chambre des notaires du Québec