Probate of the will. Modifying the will. Can the Court be avoided for the verification of a holographic will or in front of the witness will? If you would like to do a cheaper and a less time-consuming check, please note that you can verify and also certify the will before a notary.
The verification of the holographic will in front of witnesses
The Civil Code of Quebec requires holographic wills (will which are written and signed by hand by a testator) or wills which are signed in front of witnesses to be verified after the death of the testator either by the Court or by a notary, before producing effects. The verification process is necessary to ensure that the will is not a forgery, but a real document which actually includes the last wishes of the deceased person.
A will (testament, codicil) which is designed and drafted by a lawyer is subject to the same standards.
There is only one type of will which does not need verification: the notarial will!
The verification process made by the Court or by a notary includes the following:
- The confirmation of the testator’s death
- Sending of a notification for the will’s verification to all the known heirs and successors, together with a copy of the will
- The validation of the will (conformity of form)
- Making the will available for consultation – obtaining confirmation that the will is the last
- A confirmation that the holograph will has been properly written and signed by the testator.
This is reflected in a solemn declaration by a person who was familiar with the deceased’s handwriting and signature and who can confirm that it is really the deceased the one who signed the will or the codicil. In the case of a will in front of witnesses, it will be a solemn declaration by one of the witnesses who will confirm the compliance with the formalities when signing the will.
Once the will has been verified, it is annexed to the record of the verification and it will be kept in the notary’s registry; the notary is supposed to issue certified copies of the will and of the certification report to anyone who is interested.
At the same time, the notary must file a copy with the registry of the Court where the deceased has his domicile.
Note that the process lasts from 6 to 12 weeks, depending on the track you have chosen. Moreover, the verification of the will does not prevent its challenging because it’s only role is to prove that the will was made by the deceased person according to the norms of the law.
What are the cases in which the validity of the will is disputed?
The liquidator, the heirs or the successors of the deceased may challenge the validity of the will in any of the following situations if they are presumed to be real:
- The testator’s unfitness in the drafting of the will (the testator was not in full possession of his mental faculties when he wrote the will)
- The capture – the testator was unduly influenced during the drafting of his last wishes
- The ambiguity – the writing of the will leaves room for some interpretations and for misunderstandings
- The will is not unilateral, but done jointly
- The indignity of the heir
The notarial will is the only one which does not allow this type of flaws in its drafting.
Documents and information required for homologation of an un-notarized will:
- The death certificate issued by the Registrar of Civil Status
- The original will
- The birth certificate issued by the Registrar of Civil Status
- The last address of the deceased
- The social insurance number of the deceased
- The civil status of the deceased: married, divorced, widowed, single
- The name and contact details of the successors and of the liquidator
- The name and address of a witness in case we have a will in front of witnesses
- The name and address of a person who is not interested in the estate and who is able to confirm that they know the deceased’s handwriting and signature, in case the will or codicil is a holographic one
- A solemn declaration of recognition of the handwriting and of the signature, or a solemn declaration of one of the witnesses
Verification of wills – verification letters – verification of wills and relevant sections of the Civil Code of Quebec and the Code of Civil Procedure.
THE VERIFICATION OF WILLS AND LETTER VERIFICATION
THE VERIFICATION OF WILLS
- Where it would be impractical or too expensive to call all known successors to the processes of the verification of a will, the special clerk may waive this obligation and determine the persons whom the applicant or the notary seized of a request for verification must notify.
2014, c. 1, a. 459.
- If the original will is in the hands of a third party, the special clerk may order the person who holds it or to whom it has been deposited to produce it at the registry; he may also order that person to give it to the notary whom he appoints so he may examine it.
2014, c. 1, a. 460.
- A will which has been verified by the Court is deposited in the registry. The clerk shall issue to any person interested requesting the certified copies of the will, the judgment granting it, and, where appropriate, the evidence in support of the request for verification.
The will verified by a notary is annexed to the report of the verification and then it will be kept in the registry. The notary shall deliver certified copies of the will and also the verification reports to any interested person who requests so.
2014, c. 1, a. 461.
- A verified will may be challenged at a later stage of its verification by any interested person who has not opposed the request for verification or who, after having objected to it, raises grounds that he was not in a position to assert at that moment.
2014, c. 1, a. 462.
- Anyone who is interested may request letters of verification which are intended to serve outside of Quebec in order to prove their status as an heir, particular legatee, of as the liquidator of the estate. The letters of verification attest that the succession is open and they also identify the person who acts as the liquidator of the estate. In addition, they certify, in the case of intestate succession, that the assets are vested in the designated heirs in the proportions which have been indicated.
In the case of a testamentary succession, the letters of verification certify that is has been proved that the will and the copy which is annexed to it is the only one made by the deceased or that it is the last one; in such case, the letters of verification certify that this present will can revoke, in whole or only partially, any possible previous wills.
2014, c. 1, a. 463.
- The request shall be notified to the liquidator of the succession, if known, and to all known heirs or particular legatees who are resident in Quebec.
2014, c. 1, a. 464.
- The verification letters may be revoked or corrected at the request of any interested person who has not objected to them, or who, having objected to them, raises grounds that he was not in a position to assert at that moment.
2014, c. 1, a. 465.
- The clerk or notary shall issue certified copies of the letters of verification to any interested person who requests this. However, in case of a dispute, no copy may be issued until the request has been disposed of. If these letters are rectified by the judgment, the clerk delivers the news in order to replace the previous ones.
2014, c. 1, a. 466.
Source: Code de procédure civile C-25.01
For more details, contact a notary known for the diligence and for the rigorous design, for the modification or verification of the wills. Contact Mr. Linca, notary in Montreal, your legal advisor specialized in succession law !Contact us now!