Couples occasionally ask us to make a single notarized will for both spouses. This may appear practical, since very often one spouse will designate the other in the event of predecease, and the division of property can be similar. Except that making a joint will is impossible. Here’s why.
A joint will is prohibited by the Civil Code of Quebec
It is clearly stated in section 704 of the Civil Code of Quebec that joint wills are prohibited:
“A will is a unilateral and revocable juridical act drawn up in one of the forms provided for by law, by which the testator disposes by liberality of all or part of his property, to take effect only after his death.
In no case may a will be made jointly by two or more persons.”
A joint will that is not notarized will not be valid
A joint will that is holographic or made in the presence of witnesses will be equally void. The division of the deceased’s property will then be done according to the provisions of the Civil Code of Quebec, as if the person had died without a will.
Why joint wills are prohibited
The joint will is prohibited because it would deprive a person of his individual freedom to dispose of his property as he sees fit. It would also prevent him from making changes to his will since he would have to get the other spouse’s consent to change his will.
It is possible to make two separate wills, the contents of which will be very similar for the couple.
It sometimes happens that couples come to make their notarial wills together and later one of the two spouses comes to modify theirs in secret without informing the other spouse. This is proof that the freedom to dispose of one’s own property is very strong.
In such a case, the notary, by his obligation to maintain professional secrecy, cannot reveal to the other spouse that a change has been made. Notaries have always been the keepers of their clients’ secrets.
So, when preparing your will, you have to think about who you would like to leave your property with, without considering whether or not this beneficiary will do the same for you.
Mtre Mona Salehi – Notary in Montreal