5-PROBATION OF WILLS

A will made in the presence of witnesses or a holograph will must be probated (i.e. verified) by the Court before its provisions can be executed.

The demand for probation is submitted to the Court in the Judicial District where the testator had is domicile upon his death or, failing a domicile in Quebec, in the Judicial District where he died or he left property. If the testator was not domiciled or did not die in Quebec, then the demand shall be submitted in the manner stipulated by the laws of the place where he was domiciled or died.

 

In Quebec:

In Quebec, in a probation procedure, all the known heirs and successors shall be summoned to attend the probate operations, unless an exemption is granted by the Court.

The original of the will must be appended to the demand for probation with evidence (generally provided by way of affidavit(s)) that it is the last known will of the testator and that the signature of the testator appearing thereon is the authentic signature of the testator. This procedure can be presented to the Clerk of the Court or to a judge siting in chamber (i.e. in his office) or it may have to be presented in a hearing in a courtroom.

The judgement of probation confers authenticity to the will. The probated will and the judgement are filed in the court’s records. The Clerk of the Court must deliver to any interested person, certified copies of the will, of the evidence submitted and of the judgement.

A will made in the presence of witnesses or a holograph will can also be probated by a notary. The notary to whom a demand for probation is submitted notifies a notice of probate and a copy of the will to all known heirs and successors. Any observations or representations which those persons wish to make must be made, orally or by any other means of communication, within 10 days after the notification of the notice of probate.

The same evidence as would be submitted in probation procedures made before the Court must be submitted to the notary.

If the demand for probation presented to a notary is contested, the notary must transfer the matter to the Court for ruling.

A will probated by a notary is appended to the minutes of his operations prepared by the notary and kept by the notary in his files.  The probated will is deposited in the office of the Court. The notary must deliver certified copies of the probated will and the minutes of his operations to any interested person.


BOVERRY, ATTORNEYS can provide counsel to those needing to have a will probated and prepare the proper proceeding to that effect. The firm proposes a very competitive fee structure which is well adapted to its clients.