Dear Readers:

How many of you have a proper Will in place?  Have you told your beneficiaries what to expect? – instead of surprising them after you’re dead!  Do you really know what is in your parent’s Wills?  Have you made a new Will since separating/divorcing from your spouse?  If the answers to any of those questions is No, then you are grossly unprepared for the thereafter – be you the deceased (the de cujus) to be or the “maybe” heir to the kingdom!

So what to do about the sorry situation you are actually in today?

I have always wondered why family members do not explain to each other what they are planning to do with their Estates, while they still can discuss the consequences.  Why all the secrecy?  I have also wondered why so many do not have either a Will or a Will that truly represents what they really want done with their assets [and debts] after they are gone.

One of the best ways to cause infighting amongst those left behind is to mishandle how you apportion what you have to bequeath.  Anger, hurt, and resentment are all synonymous with a poorly thought out Will or worse, with no Will at all.

Firstly, if you die without a Will, or Ab Intestate in Quebec, the Government decides by law who gets what – not you! Do you really trust the politicians to divide up your Estate?  Do you really want that cousin you haven’t seen for 30 years to possibly inherit from you?  Then do a proper Will, and review it every 5 years, as time changes your assets, people disappoint and you change.

In Quebec, there are 3 Forms of Wills:

  1. Wills made in the presence of witnesses.
  2. Holograph Wills.
  3. Testamentary Wills.

The following is a non-comprehensive overview of 2 Will Forms:

Wills made in the presence of witnesses means the Will maker, you, must declare in front of 2 witnesses, of major age, that the Will accurately represents your wishes. You need not disclose the content, as witnesses are not inheriting. The witnesses then also sign the Will, initialling each page.

A Holograph Will must be completely handwritten by you and signed.  Don’t type, text or use any other mechanical device.  One reason why teaching handwriting in school is still useful!

I strongly urge everyone to prepare a Testamentary Will, but if you have little or no assets, or no time at the moment, at least do a handwritten Will in accordance with the conditions for same, failing which your Will could be nullified; but ultimately have a Testamentary Will drawn up.

Remember to leave a copy of the Will where it can be easily accessed (make several copies) and tell someone where to look for the original.  Because if your heirs cannot find it, you will be deemed to have died without, and then your wishes may fall by the wayside.

Let’s say, for example, you have a Will (not notarial) leaving 1/2 your Estate to your new partner, with whom you have yet to tie the knot, because you have either not popped the question not taken Divorce proceedings and/or there is no Divorce Judgment.  You die and no one can find this handwritten or Holograph Will anywhere (you hid it in the Urn with your mother’s ashes).  Who inherits?  Answer:  Your spouse, whom you were going to divorce, and your children, 1/3 ~ 2/3 respectively.  Or worse, you have no children, then the not yet “ex-to-be” inherits all.  So this is why paying attention to your affairs can be extremely important.

Even though lawyers can register Wills, I always recommend that you get a notarized Will if you live in Quebec.  However, I also recommend that firstly you seek out advice from an expert attorney with regards to the issues of Family Patrimony and Partnership of Acquests (for those of you who did not heed my advice and have a Marriage Contract drawn up prior to saying “I do”).  And as your worth increases in value, and/or if you own a company, you should also discuss tax planning with an expert, unless of course, you want your heirs to pay more taxes than necessary to the Government.

There are many other facets to Successoral Law, such as knowing who are privileged Ascendants (your parents) and privileged Collaterals (your siblings and their children) and what can happen.

And, if you are getting on in years, (you’re old), and are contemplating changing your Will, I suggest you attach a recent Medical Certificate to confirm, by your Doctor, that you are of sound mind, so as to avoid former heirs from contesting your new Will and new heir(s).  If possible, make a video explaining why you are doing this new Will and put it with the original Will and make a copy for your Notary and/or liquidator to keep.

So remember Hammerschmid’s 6P Principle:  “Prior Planning Prevents Poor Performance” and stop Procrastinating!

Me Hammerschmid is a practicing Family Law Attorney since 1982 and Senior Partner at Hammerschmid & Associates, 1 Westmount Square, Suite 1290, and a founding and current member [past Secretary for 28 years] of The Family Law Association of Quebec.  Frequent guest on CBC TV/Radio, CTV and CJAD on Family Law, Me Hammerschmid can be reached at 514-846-1013 or [email protected].  Inquiries treated confidentially.