Estate Planning

Probate of a Quebec Notarial Will in Ontario

By Hull and Hull LLP

In Quebec, while formal and holograph wills are recognized, there is also a third kind of will called a notarial will, which involves more formalities than the other two. 

A notarial will is a will drawn by a notary, who ensures the formalities in articles 716 and 717 of the Civil Code of Quebec are observed. It is generally made before the notary in the presence of one witness, though in special circumstances two witnesses are required; for example, if the testator is blind or cannot sign for him or herself. The will must indicate the date and place it was made.  Once the will has been read by the notary in the presence of the testator and the witness, all sign the will in each other's presence.

The original will is kept by the notary, and the Chambre des notaries maintains a register of all notarial wills. In Quebec, notarial wills do not require probate and are more difficult to contest in court.

Under section 15 of the Estates Act, R.S.O. 1990 c. E.21. A notarial will made in Quebec may be admitted to probate in Ontario without production of the original will upon filing a notarial copy with the other proper proofs to lead grant.

To Apply for a Certificate of Appointment of Estate Trustee with a Will for a notarial will, you must file an Affidavit of Execution by the notary, which is not a requirement in Quebec.  If the notary cannot be found, the Estate Trustee should file an affidavit explaining why together with an affidavit from any other person present when the will was executed, even though that person did not sign the will as a witness.

If neither the notary nor any witnesses can be found, the Estate Trustee must file an affidavit indicating attempts to locate them together with an affidavit by a person (not a beneficiary) who can attest to the signature of the deceased. 

If no witnesses can be located, the Estate Trustee can file an affidavit and draft order in support of a motion to dispense with the affidavit of execution.

If you would like more information on wills in Quebec, see this Government of Quebec website.

Thanks for reading!

Sharon Davis

Full post as published by Toronto Estate Law Blog on April 21, 2010 (boomark / email).