Where there's a will, there's a way
Q: My parents haven't made out a will. Is it legal to write a will on a piece of paper and have them sign it? Do we have to get it done at a notary's office?
A: Let me use the story of the Three Little Pigs to inspire your future plans.
No house - no will. Let’s start with this lowest rung in the hierarchy for succession planning. The Civil Code would apply when there is no will: If the deceased leaves a spouse and descendants, the succession devolves to them. The spouse takes one-third of the succession and the descendants, the other two-thirds. If some of the beneficiaries are deceased or do not exist, the Code builds up to a symphony of increasingly hard sections to read and figure things out. After your nervous breakdown upon googling 39 websites on what to do after someone dies, you will obligatorily wind up in a lawyer or notary’s office to hear the bad news - legal procedures have to be undertaken (translation - spend money on lawyers).
Straw house will. Next up in the hierarchy is the holographic will. The Civil Code states: A holograph will shall be written entirely by the testator and signed by him, without the use of technical means. It is subject to no other formal requirement. No typewriters or computers allowed. No witnesses required. Big disadvantages are locating it and with a large estate, you can raffle off tickets to see lawyers in court finding ambiguities and loopholes. However you can have fun writing things like what mister Kelly, a Monaco millionaire, wrote in a will when he left nothing to his sons-in-law:
“I don’t want to give the impression that I am against sons-in-law. If they are the right type, they will provide for themselves and their families, and what I am able to give my daughters will help pay the dress shop bills, which, if they continue as they started out, under the able tutelage of their mother, will be quite considerable.’’
Wood house will. Having dealt with the least attractive options on how you document (or not) what happens after you die, the natural hierarchy brings us to the lower rung of the upper class of will preparation, the 29.99$ standard online will. It has to be signed in front of two sober witnesses. Following the climactic moment of saving money using the web, the anticlimactic moment of spending a bigger amount after death to get court approval will then sadly occur. Even if you use a lawyer, the courts will still have to approve the will (otherwise it would be the brick house). Another problem is people amending it when it’s in the house. This will cause legal problems because the amendment without witnesses won’t be valid.
Brick house will. The master craftsmen of wills in Quebec are the notaries. You don’t have to get the will approved in court (called probate, validating the will notably for date and signature) when it is prepared by a notary (unlike the lawyer prepared wills just discussed).Notarized wills are inexpensive, in the hundreds of dollars, less than that tilt steering option you choose for a new car. Wills prepared by lawyers and notaries are retraceable through an efficient central provincial registry anyone can verify.
Let’s address the necessity for the original document because photocopies won’t work; nor will videotaping your benefactor on the hospital bed. No Facebook wills yet but watch for it. That will be the trigger for legislative changes on modern wills. The primary goal of the law on wills is essentially singular - what was the intent of the deceased? The second function is providing the framework for the paper work, protecting families from the big bad wolves who falsify paper wills. The law on wills has one consistent feature despite the computer age - paper. This will change someday.
Disclaimer: I am not receiving any advantage from this column endorsing the use of notaries nor should this column be construed as hindering the work by lawyers playing music and/or advertising wills in the metro next to a tip jar.
Vincent Maranda, lawyer