To draw up your will yourself, you must respect certain rules or it will be null and void. In addition, certain wording or omissions could be likely to guide the course of your estate.
The notarial will remains the safest form of will.
The three recognized forms of wills in Quebec are notarial wills, holograph wills and wills in the presence of witnesses.
Mistake no. 1: Writing your will as a digital version.
The holograph will must be written out in full and signed by you (sect. 726 of the Civil Code of Quebec). A will written on the computer and then signed by hand will not be valid.
Mistake no. 2: Making a will before witnesses and indicating one of the witnesses as a beneficiary of your estate
If you make a will in the presence of witnesses, you cannot designate any of the witnesses to your will as a beneficiary, as mentioned in the Civil Code of Quebec (sect. 760)
Mistake no. 3: Not informing your loved ones of the existence and location of your will
The existence of holograph wills and wills in the presence of witnesses are not registered in the registers of testamentary dispositions of the Chambre de notaires du Québec or of the Barreau du Québec, unlike notarial wills and wills made with a lawyer.
In addition, a will made with a lawyer is considered to be a will made in the presence of witnesses and will have to be verified upon the death of the testator (unlike a notarial will). If none of your relatives knows of the existence of your will and its location, your will may not be found until it’s too late. Even worse, it might never be found…
Mistake no. 4: writing or signing your will together
Section 704 of the Civil Code is very clear: a will, regardless of its form, cannot be made jointly or it will be null and void. It is an individual act. Nothing prevents a couple from having an almost identical will, but this will have to be done using one will for each spouse.
Mistake no. 5: not respecting the public order rules of the Civil Code of Quebec
The clauses of a will must respect the public order of the Civil Code of Quebec. For example, a clause such as: “ I bequeath $25,000 to my son John provided he does not marry”, will not be acceptable.
Mistake no. 6: not updating your will
A will, whether it is a notarial will, a holograph will or a will in the presence of witnesses, must be kept up to date according to the changes and events in your life (marriage, separation, death, illness, etc.). Minor changes such as a change of executor can be done by codicil. Major changes will require a new will.
Mistake no. 7: having a will made for a person in a state of incapacity
A person in a state of incapacity cannot make a will. This makes sense since a person could not adequately express their will if their mental faculties are impaired, temporarily or permanently.
Mistake no. 8: ignoring the costs and time required for verification of your will for your estate
Only the notarized will has the advantage of not requiring a verification procedure on the death of the testator. For other forms of will, a will verification procedure will have to be initiated by your estate, which will cause delays of several months and thousands of dollars in costs for your estate.
Entrust the drafting of your will to Me Mona Salehi and her team
Me Mona Salehi and her team are available to help you with writing your notarial will in Montreal or anywhere else since notarial wills can now be received remotely.