Did you know that you can change your will up until the last day before your death, as long as you are still capable of doing so?
Fascinating, isn't it! The problem is that at the end of life, capacity is a sensitive issue, especially if the testator has become vulnerable with age. This can result in a last minute change of will, depriving some heirs of their fair share!
Not so fast! In Quebec, a will can be contested and annulled after death on the grounds of lack of capacity of the testator or undue influence. To obtain such a result, however, you must turn to an estate lawyer who specializes in contesting wills!
You've come to the right place to start because JuriGo presents ALL you need to know about contesting a will in Quebec, and puts you in touch with an estate lawyer for free!
Simply fill out our form and JuriGo will find your estate lawyer!
EVERYTHING you need to know about wills before contesting one!
Before embarking on a dispute, you must know the three forms of wills allowed in Quebec in order to identify the one chosen by the deceased! This information is essential as compliance with one of these three types of wills is mandatory.
Here are the essential things to know about the holographic will, before witnesses and notaries!
Holographic Will
A holographic will is a document that must be entirely written and signed by hand by the testator. These are the only conditions for forming a legal holographic will that complies with the requirements of the Civil Code. After death, a verification process must be carried out.
In front of witnesses
A document can be written by hand, on a computer, or on a typewriter. This type of will must be signed in the presence of two adult and competent witnesses who are not affected in any way by the contents of the will.
Notarized will
The notarized will is the most popular form of a will because it is the strongest! It is a will written by the notary and in the presence of a witness. The fact that a notary drafts your will makes this document a notarial act that is very difficult to dispute.
What is the impact of the type of will on a dispute? In order for a will to be valid and to be implemented after death, it must comply with one of the three forms mentioned, in addition to complying with the formal conditions of these same types of wills.
If not, the door is wide open for a challenge to the will!
The incapacity of the testator: The first grounds of a dispute!
The Civil Code of Quebec requires that a person has mental capacity at the time of signing the will! The testator must be physically present and be able to give free and informed consent when writing his last will.
If you can prove that the testator no longer had mental capacity when preparing or amending his will, it can be nullified.
But NOT SO FAST!
Under Quebec civil law, mental capacity is presumed. It will, therefore, be up to you, as a challenger of the will, to prove the incapacity. In addition, it is sufficient that the testator has been fit at the time of preparing the will; if he becomes unfit thereafter, your recourse will fall by the wayside.
Is it easy to prove a testator’s incapacity?
Truthfully, no, it is not easy. This is because since the testator died at the time of the challenge to his will, it is very difficult to demonstrate his state of mind during the preparation of his last will.
How to demonstrate that the deceased was no longer mentally capable?
You will need to use testimonies, medical records, and other expertise to prove that the disputed will does not represent the testator’s true wishes. Moreover, it is possible to challenge the will, in the same way as the codicils that modify it.
A notarial will is not a guarantee of absolute capacity!
When writing the will, the notary checks to see if the person is able to give free and informed consent but the notary is not a medical expert!
Thus, it is not their duty to determine a person’s mental capacity. A notarial will, even if it is an authentic instrument, may also be challenged on the basis of incapacity.
Do you believe that the testator did not have mental capacity during the preparation of his last will? Speak to an estate lawyer from JuriGo!
Undue influence: How to prove it
A will may be annulled due to undue influence if the deceased was a victim of manoeuvres, lies, pressure, or threats from a third party to change the contents of his will before death.
It is, therefore, a fraudulent way of obtaining the testator’s favor before his death in order to profit from the amendment of the will. It is not so simple to prove a situation of undue influence since it often takes a subtle form surrounded by vague circumstances.
What needs to be proven? Again, because the principal is deceased, evidence of undue influence will have to be through testimony and presumptions which complicates things. Reprehensible behaviour such as the manipulation of the testator’s will must be proven.
However, not all actions fall under undue influence. There is nothing illegal about attracting the good graces of the testator, even at the end of his life, as long as no fraudulent actions were taken, and as long as the testator is still fully capable.
As mentioned, undue influence cases are complex and they are not easy to prove in court.
If you believe that a deceased loved one was the victim of undue influence, and that he was forced to change his will, consult a lawyer who specializes in this field as this is your best chance!
Non-compliance with Form: Can the entire will be cancelled?
It is essential to remember that there are only three forms of wills are valid in Quebec, and all the conditions for the formation of these different wills must be followed.
Can you have a will annulled because it does not follow the required form? As mentioned above, the will MUST follow one of three forms! However, the fact that the Will does not perfectly comply with all the requirements will not always be disastrous.
If the will is partially compliant, it may be upheld by the court if it finds that the document meets the requirements of another form of will and truly represents the wishes of the testator.
For example, a will before witnesses that does not meet all of the requirements may be a valid holographic will if it is handwritten and signed.
What happens if the will does not follow any of the three forms? It is simply not a will. It will have no effect after death and cannot be used to bequeath property.
Contesting a notarial will: Forgery is necessary!
A notarial will is an authentic act; by law, such a document, by its mere presentation, is proof of its content. This means that it must be contested in a particular way using the application for inscription of forgery! Such an application must be filed with the court and is used to challenge an authentic act such as a notarial will.
When should you use the grounds of forgery? When you allege that the will does not represent the true will of the testator and that the public officer, i.e. the notary, made an error when preparing the will.
A notarial Will is a strong document, but it is not impossible to challenge, especially when there is a valid reason to challenge it!
Some legacies may be illegal and therefore invalid!
In Quebec, there are certain bequests that are prohibited to protect the testator from abuse while in a vulnerable position at the end of life!
In particular, bequeathing property to the staff of the health care facility where the deceased resided is strictly prohibited. If such a bequest is noted in the will, it will be possible to obtain its annulment, since the Civil Code provides for a presumption of undue influence when a bequest is made to such a person.
Why is this bequest prohibited? Because the patient's vulnerable position exposes them to abuse! This is a public protection policy to prevent misconduct in health care facilities.
Is there such a bequest in the will in question? Now you know it is illegal and you can challenge it and have it overturned.
What are the steps to successfully contest a will?
At this point, you probably realize that contesting a will is a complex legal process, to say the least. You're about to embark on quite a battle, so make sure you follow the right steps to get the results you want!
Here are the steps for contesting a will with an estate lawyer!
Waiting for the death of the testator
A will is a personal and private act as long as the testator has not died. Thus, even if you become aware of your loved one's wishes before his or her death and you suspect a problem, no challenge can be made before death.
Reading the Will
The death is followed by the search for the will and the opening of the will. It is at this time that you will learn the contents of the last will, allowing you to refute or confirm your fears.
Verify your interest in contesting
Do you think the will doesn't hold up? Before you jump into the fray, make sure that contesting a will is in your best interests. That is, check to see if a previous will names you as an heir or if a legal estate entitles you to inherit. If not, you will come up empty-handed even with a successful challenge.
Consult a lawyer and file an appeal in court!
Unfortunately, being deprived of a hoped-for inheritance is not an acceptable reason for annulment. By consulting a lawyer, you will have a clear idea of your chances of success in contesting a will.
You have 3 years from the time you become aware of your right to act to file a dispute. In many cases, this starting point will be the opening of the will, so don't waste time!
What happens if you are successful in having a will annulled?
You're at the finish line; the will in question has been declared invalid by the court and, therefore, cancelled. What happens now? There are two very different scenarios!
If the deceased had a previously prepared will, and this one is valid in form, it is the document that will replace the one declared invalid. You, on the other hand, will inherit according to the provisions of the previous will.
In the event that the only existing will has been annulled... the legal devolution remains!
In fact, if you succeed in having the will cancelled, but the deceased had not prepared any other will, the succession will take place intestate, that is, according to the provisions of the Civil Code of Quebec.
You must be beginning to think that contesting a will involves a lot of complexity, right?
Estate law is quite complex and requires advanced legal knowledge. Be sure to seek the advice of an estate lawyer to maximize your chances of successfully contesting a will!
JuriGo can find a lawyer to challenge a will!
Do you really think that your loved one's will has been tampered with or that the deceased was influenced in the drafting of his last wishes? If so, you now know what to do, and more importantly, you know that you must act quickly in order to follow the statute of limitations!
Contact JuriGo to find a lawyer who specializes in estate law and will disputes in your area.
JuriGo's network of partners covers the whole province of Quebec.
Fill out the form at the bottom of the page and JuriGo will find a lawyer for you, free of charge, and without obligation.