According to the Civil Code of Québec, three forms of wills are legally accepted, namely:
- The notarial will
- The private writing will (will made in the presence of witnesses)
- The holograph will
Wills in any other form are invalid. Forget about a will recorded on video or with an audio recorder. The legislator does, however, allow for some latitude and a will that does not entirely correspond to one or the other forms of acceptable will may still be homologated by the court. Such a procedure can be costly and opens the door wide open for certain dissatisfied persons wishing to contest a will.
At Touchette Lamarre Notaries, we always recommend the notarial will. However, we can probate and homologate private writing wills and holograph wills. Please refer to the Settling an Estate section of our website.
It’s the testator who pays for a notarial will; however, it’s the heirs who will end up paying for private writing wills or holograph wills. Contact us, a notarial will is probably less expensive than you would think!
The notarial will is the best type of will a person can have. The notarial will is automatically valid upon production of the death certificate and once will searches have been conducted with the Barreau du Québec and with the Chambre des notaires du Québec.
When the estate is opened, having a notarial will can save an enormous amount of time as it constitutes proof of its content and therefore does not have to be submitted before the court – and underlying judicial delays. In fact, this can save up to 3 months of waiting for a will to be validated. With funeral fees and other debts of the deceased to pay, this can be stressful for heirs who haven’t received any life insurance payments or are unable to withdraw money from the deceased’s bank account.
Also, with a notarial will, you will meet with a notary who will counsel you and draft your will to ensure that your property is transferred and distributed according to your wishes. Our experienced team of notaries has the knowledge and training required to define your estate needs… not to mention things that may not have even crossed your mind yet.
Depending on your specific circumstances, your notary will propose one of two types of will, either a regular notarial will or a notarial testamentary trust.
Private writing will (will made in the presence of witnesses)
The private writing will, formerly known as the English form will, is simply a will, written by the testator or a third party, whether through technical means or not, that is signed by the testator before two witnesses of full age. The testator and witnesses must initial each page and the witnesses must have no interest or stake whatsoever in the will.
The will made in the presence of witnesses shall be probated by the notary or the court. This process often entails fees and delays that exceed the cost of making a notarial will. In order to probate the will, one of the witnesses must be found and sign a sworn statement confirming that he or she was indeed one of the witnesses to the will signed by the testator. We will spare you the details surrounding the headaches involved to probate a will when the witnesses are untraceable, incapable or deceased.
Interesting fact: a notarial will can be used as a private writing will in provinces and countries where notaries are not recognized because the document is signed in the presence of a witness. This may sometimes facilitate the transfer of real estate properties located in Florida, for example.
A holograph will simply means that the testator wrote the document by hand. Therefore, a will that was typed on the computer, printed and signed by the testator is invalid. To be valid, the testator must write the entire will by hand.
Just like the private writing will, the holograph will must be probated. A person with no interest or stake in the will and estate must attest to the signature and writing of the testator for the document to be valid.
Furthermore, although less costly, this type of will is rarely complete because the authors are people with little or no legal knowledge. The will therefore not only has to be probated but questions may have to be raised before the court; the judge may even be called upon to interpret the wishes of the deceased person. Also, the heirs will have to incur additional costs to complete certain steps, such as the appointment of a liquidator.