Wills & the Civil Code
THE NATURE OF WILLS
703. Every person having the required capacity may, by will, provide otherwise than as by law for the devolution upon his death of the whole or part of his property.
704. 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.
705. The act is a will even if it contains only provisions regarding the liquidation of the succession, the revocation of previous testamentary provisions or the exclusion of an heir.
706. No person may, even in a marriage or civil union contract, except within the limits provided in article 1841, renounce his or her right to make a will, to dispose of his or her property in contemplation of death or to revoke the testamentary provisions he or she has made.
THE CAPACITY REQUIRED TO MAKE A WILL
707. The capacity of the testator is considered relatively to the time he made his will.
708. A minor may not dispose of any part of his property by will, except property of little value.
709. A will made by a person of full age after he has been placed under tutorship may be confirmed by the court if the nature of its provisions and the circumstances in which it was drawn up allow it.
710. A person of full age under curatorship may not make a will. A person of full age provided with an adviser may make a will without assistance.
711. A tutor, curator or adviser may not make a will on behalf of the person whom he represents or assists, either alone or jointly with that person.
FORMS OF WILLS
712. The only forms of will that may be made are the notarial will, the holograph will and the will made in the presence of witnesses.
713. The formalities governing the various kinds of wills shall be observed, on pain of nullity.
However, if a will made in one form does not meet the requirements of that form of will, it is valid as a will made in another form if it meets the requirements for validity of that other form.
714. A holograph will or a will made in the presence of witnesses that does not fully meet the requirements of that form is valid nevertheless if it meets the essential requirements thereof and if it unquestionably and unequivocally contains the last wishes of the deceased.
715. No one may cause the validity of his will to be subject to any formality not required by law.
716. A notarial will is executed by a notary, en minute, in the presence of a witness or, in certain cases, two witnesses.
The date and place of the making of the will shall be noted on the will.
717. A notarial will is read by the notary to the testator alone or, if the testator chooses, in the presence of a witness. Once the reading is done, the testator shall declare in the presence of the witness that the act read contains the expression of his last wishes.
The will is then signed by the testator, the witness or witnesses and the notary, in each other’s presence.
718. The formalities governing notarial wills are presumed to have been observed even when this is not expressly stated, subject to the laws governing the notarial profession.
However, if formalities particular to certain wills apply, the act must mention the reason for their observance.
719. The notarial will of a testator who cannot sign contains a declaration by him to that effect. This declaration also is read by the notary to the testator in the presence of two witnesses, and it compensates for the absence of the signature of the testator.
720. The notarial will of a blind person is read by the notary to the testator in the presence of two witnesses.
In the will, the notary declares that he has read the will in the presence of the witnesses, and this declaration also is read.
721. The notarial will of a deaf person is read by the testator himself in the presence of the notary alone or, if he chooses, of the notary and a witness. If the testator is able to do so, he reads the will aloud.
In the will, the testator declares that he has read it in the presence of the notary and, where such is the case, the witness. If the testator is unable to speak, the declaration is read to him by the notary in the presence of the witness; if he is able to speak, it is read aloud by the testator himself, in the presence of the notary and the witness.
722. A person unable to express himself aloud who wishes to make a notarial will conveys his wishes to the notary in writing.
722.1. A deaf person who, being unable to speak, read or write, cannot avail himself of the other provisions of this section may make a notarial will, provided he conveys his wishes to the notary through a sign-language interpreter.
The testator, in the presence of the notary and a witness, declares, through the same means, that the document translated to him by the interpreter is his will.
The interpreter is chosen by the testator from among interpreters qualified to exercise their functions before the courts and may in no case be the spouse of the testator or related to the testator in either the direct or the collateral line up to and including the third degree, or be connected to that extent by marriage or a civil union to the testator.
The interpreter must first swear in writing, before the notary, the testator and the witness, to carry out his functions with impartiality and accuracy and not to disclose any information related to his mandate. The original of the oath is attached to the will.
723. In no case may a notarial will be executed by a notary who is the spouse of the testator, is related to the testator in either the direct or the collateral line up to and including the third degree, or is connected to that extent by marriage or a civil union to the testator.
724. The notary before whom a will is executed may be designated in the will as the liquidator, provided he fulfils that office gratuitously.
725. A witness called upon to be present at the making of a notarial will shall be named and described in the will.
Any person of full age may witness a notarial will, except an employee of the officiating notary who is not himself a notary.
726. 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.
WILLS MADE IN THE PRESENCE OF WITNESSES
727. A will made in the presence of witnesses is written by the testator or by a third person.
The testator then declares in the presence of two witnesses of full age that the document he is presenting is his will. He need not divulge its contents. He signs it at the end or, if he has already signed it, acknowledges his signature; he may also cause a third person to sign it for him in his presence and according to his instructions.
The witnesses sign the will forthwith in the presence of the testator.
728. Where the will is written by a third person or by technical means, the testator and the witnesses initial or sign each page of the act which does not bear their signature.
The absence of initials or a signature on each page does not prevent a will made before a notary that is not valid as a notarial will from being valid as a will made in the presence of witnesses, if the other formalities are observed.
729. A person who is unable to read may make a will in the presence of witnesses, provided the will is read to the testator by one of the witnesses in the presence of the other.
The testator, in the presence of the same witnesses, declares that the document read is his will and signs it at the end or causes a third person to sign it for him in his presence and according to his instructions.
The witnesses sign the will forthwith in the presence of the testator.
730. A person who is unable to speak but able to write may make a will in the presence of witnesses, provided he indicates in writing, otherwise than by technical means, in the presence of the witnesses, that the document he is presenting is his will.
730.1. A deaf person who, being unable to speak, read or write, cannot avail himself of the other provisions of this section may make a will in the presence of witnesses, provided he conveys his wishes to the drafter through a sign-language interpreter.
The testator, in the presence of the witnesses, declares, through the same means, that the document translated to him by the interpreter is his will. Where possible, the testator affixes his signature or a personal mark at the end of the will. Otherwise, the testator has a third person sign for him, in his presence and in accordance with his instructions. The witnesses then sign the will immediately in the presence of the testator.
The interpreter is chosen by the testator from among interpreters qualified to exercise their functions before the courts and may in no case be the spouse of the testator or be related to the testator in either the direct or the collateral line up to and including the third degree, or be connected to that extent by marriage or a civil union to the testator.
The interpreter must first swear in writing, before the drafter, the testator and the witnesses, to carry out his functions with impartiality and accuracy and not to disclose any information related to his mandate. The original of the oath is attached to the will.
TESTAMENTARY PROVISIONS AND LEGATEES
VARIOUS KINDS OF LEGACIES
731. Legacies are of three kinds: universal, by general title and by particular title.
732. A universal legacy entitles one or several persons to take the entire succession.
733. A legacy by general title entitles one or several persons to take
(1) the ownership of an aliquot share of the succession;
(2) a dismemberment of the right of ownership of the whole or of an aliquot share of the succession;
(3) the ownership or a dismemberment of the right of ownership of the whole or of an aliquot share of all the immovable or movable property, private property, community property or acquests, or corporeal or incorporeal property.
734. Any legacy which is neither a universal legacy nor a legacy by general title is a legacy by particular title.
735. The exception of particular items of property, whatever their number or value, does not affect the character of a universal legacy or of a legacy by general title.
736. Property left by the testator for which he made no provision or for which the provisions are without effect remains in his intestate succession and devolves according to the rules governing legal devolution of successions.
737. Testamentary provisions made in the form of an appointment of heir, a gift or a legacy, or in other terms indicating the intentions of the testator, take effect according to the rules provided in this Book with regard to universal legacies, legacies by general title or legacies by particular title.
Sufficient expression by the testator of a different intention takes precedence over the rules referred to in the first paragraph and the meaning ascribed to certain terms.
738. A universal legatee or legatee by general title is an heir upon the opening of the succession, provided he accepts the legacy.
739. A legatee by particular title who accepts the legacy is not an heir, but is nonetheless seized of the property bequeathed, as is an heir, by the death of the deceased or by the event which gives effect to the legacy.
He is not liable for the debts of the deceased on the property of the legacy unless the other property of the succession is insufficient to pay the debts, in which case he is liable only up to the value of the property he takes.
740. In order to receive his legacy, a legatee by particular title is required to have the same qualities as are required to inherit.
He may be unworthy to receive the legacy just as a person may be unworthy to inherit; like a successor, he may apply to the court to have an heir or a colegatee by particular title declared unworthy.
741. Like a successor, a legatee by particular title has the right to deliberate and exercise his option with respect to the legacy made to him, with the same effects and according to the same rules.
742. The provisions concerning the petition of inheritance and its effects on the transmission of the succession are also applicable, adapted as required, to a legatee by particular title.
In all other respects, the legatee by particular title is subject to the provisions of this Book concerning legatees.
THE EFFECT OF LEGACIES
743. Fruits and revenues from the property bequeathed accrue to the legatee from the opening of the succession or the time when the provision takes effect in his favour.
744. Bequeathed property is delivered, with its accessories, in the condition in which it was when the testator died.
This rule also applies to the rights attached to bequeathed securities, if they have not yet been exercised.
745. Where immovable property is bequeathed, any accessory or annexed immovable property acquired by the testator after signing the will is presumed to be included in the legacy, provided the property forms a whole with the immovable bequeathed.
746. The legacy of an enterprise is presumed to include the operations acquired or created after the signing of the will which, at the time of death, form an economic unit with the bequeathed enterprise.
747. Where the payment of a legacy is subject to a term, the legatee nevertheless has an acquired right from the death of the testator which is transmissible to his own heirs or legatees by particular title.
The right of the legatee to a legacy made under a condition is also transmissible unless the condition is of a purely personal nature.
748. A legacy to a creditor is not presumed to have been made as compensation for his claim.
749. Where, in testate successions, the legacy is made to all the descendants or collaterals of the testator who would have been called to his succession had he died intestate, representation takes place in the same manner and in favour of the same persons as in intestate successions, unless it is excluded by the testator, expressly or by the effect of the provisions of the will.
There is no representation in the matter of legacies by particular title, however, unless the testator has so provided.
LAPSE AND NULLITY OF LEGACIES
750. A legacy lapses when the legatee does not survive the testator, except where there may be representation.
A legacy also lapses where the legatee refuses it, is unworthy to receive it or dies before the fulfilment of the suspensive condition attached to it, if the condition is of a purely personal nature.
751. A legacy also lapses if the bequeathed property perished totally during the lifetime of the testator or before the opening of a legacy made under a suspensive condition.
If the loss of the property occurs at the death of the testator, at the opening of the legacy or subsequently, the insurance indemnity is substituted for the property that perished.
752. Where a legacy charged with another legacy lapses from a cause depending on the legatee, the legacy imposed as a charge also lapses, unless the heir or legatee called to take what was the object of the lapsed legacy is able to execute the charge.
753. A legacy made to the liquidator as remuneration lapses if he does not accept the office.
This is also the case where a legacy is made to remunerate the person appointed by the testator as tutor to a minor child or designated by him to act as the administrator of the property of others.
754. A remunerative legacy is resolved where the liquidator, tutor or another administrator of the property of others designated by the testator ceases to hold that office; he has in this case a right to remuneration proportionate to the value of the legacy and the time for which he held the office.
755. Accretion takes place in favour of the legatees by particular title where property is bequeathed to them jointly and a lapse occurs with regard to one of them.
756. A legacy by particular title is presumed to be made jointly if it is made by one and the same provision and if the testator has not allotted the share of each colegatee in the bequeathed property or has allotted the colegatees equal aliquot shares.
It is also presumed to be made jointly when the entire property is bequeathed by the same act to several persons separately.
757. A condition that is impossible or that is contrary to public order is deemed unwritten.
Thus, a clause limiting the rights of a surviving spouse in the event of a remarriage or new civil union is deemed unwritten.
758. A penal clause intended to prevent an heir or a legatee by particular title from contesting the validity of the will or any part of it is deemed unwritten.
A disinheritance taking the form of a penal clause intended for the same purpose is also deemed unwritten.
759. A legacy made to the notary who executes a will or to the spouse of the notary or to a relative in the first degree of the notary is without effect; this does not affect the other provisions of the will.
760. A legacy made to a witness, even a supernumerary, is without effect, but this does not affect the other provisions of the will.
The same is true for that part of the legacy made to the liquidator or to another administrator of property of others designated in the will which exceeds his remuneration, if he acts as a witness.
761. A legacy made to the owner, a director or an employee of a health or social services establishment who is neither the spouse nor a close relative of the testator is without effect if it was made while the testator was receiving care or services at the establishment.
A legacy made to a member of a foster family while the testator was residing with that family is also without effect.
762. A legacy of property of another is without effect, unless it appears that the intention of the testator was to oblige the heir to obtain the bequeathed property for the legatee by particular title.
REVOCATION OF WILLS AND LEGACIES
763. Revocation of a will or of a legacy is express or tacit.
764. A legacy made to the spouse before a divorce or the dissolution of a civil union is revoked unless the testator manifested, by means of testamentary provisions, the intention of benefitting the spouse despite that possibility.
Revocation of the legacy entails revocation of the designation of the spouse as liquidator of the succession.
The same rules apply if the marriage or civil union is declared null during the lifetime of the spouses.
765. Express revocation is made by a subsequent will explicitly declaring the change of intention.
A revocation that does not specifically refer to the revoked act is nonetheless express.
766. A will that revokes another will may be made in a different form from that of the revoked will.
767. The destruction, tearing or erasure of a holograph will or of a will made in the presence of witnesses entails revocation if it is established that this was done deliberately by the testator or on his instructions. Similarly, the erasure of any provision of a will entails revocation of the legacy made by that provision.
Revocation is entailed also where the testator was aware of the destruction or loss of the will and could have replaced it.
768. A subsequent testamentary provision similarly entails tacit revocation of a previous provision to the extent that they are inconsistent.
The revocation retains its full effect even if the subsequent provision lapses.
769. Alienation of bequeathed property, even when forced or made under a resolutive condition or by exchange, also entails revocation with regard to everything that has been alienated, unless the testator provided otherwise.
Revocation subsists even if the alienated property has returned into the patrimony of the testator, unless a contrary intention is proved.
If the forced alienation of the bequeathed property is annulled, it does not entail revocation.
770. Revocation of a previous express or tacit revocation does not revive the original provision, unless the testator manifested a contrary intention or unless such intention is apparent from the circumstances.
771. If, owing to circumstances unforeseeable at the time of the acceptance of the legacy, the execution of a charge becomes impossible or too burdensome for the heir or the legatee by particular title, the court, after hearing the interested persons, may revoke it or change it, taking account of the value of the legacy, the intention of the testator and the circumstances.
PROOF AND PROBATE OF WILLS
772. A holograph will or a will made in the presence of witnesses is probated, on the application of any interested person, in the manner prescribed in the Code of Civil Procedure (chapter C-25.01).
The known heirs and successors shall be summoned to the probate of the will unless an exemption is granted by the court.
773. No person having acknowledged a will may thereafter contest its validity, although he may apply to have the will probated.
In the case of contestation of a will which has been probated, the burden is on the person availing himself of the will to prove its origin and regularity.
774. A will that is not produced may not be probated; it must be reconstituted upon an action in which the heirs, the other successors and the legatees by particular title have been summoned, and the proof of its contents, origin and regularity must be conclusive and unequivocal.
775. Proof by testimony of a will that cannot be produced is admissible if the will has been lost or destroyed, or is in the possession of a third person, without the collusion of the person who wishes to avail himself of the will.
Pour de l’information sur les 13 étape de la liquidation d’une succession, nous vous invitons à visionner notre vidéo portant sur ce sujet:
Contactez-nous pour de plus amples informations: Tel: 514-898-4029 Courriel: malacombe@LacombeAvocats.ca