There is nothing that can tear a family apart like a contested estate. For sound advice on estate law, trust an attorney with a proven track record and extensive experience.
The laws with respect to the validity of wills clearly define the circumstances that can lead to a will of been declared invalid. Suffice it to say easier said than done.
Very often people feel that there is absolutely no way a last will and testament really reflects what the deceased wanted. On other occasions people feel that the will is not fair. Lastly sometimes people feel that they’ve been cheated due to somebody else’s behavior influence on the deceased at a time when he or she was vulnerable. The question begs what can we do about this?
Book a confidential consultation with Joan Benson today. The particular details of your situation will be considered and together we can determine the best course of action.
- Notarial Wills
- Handwritten Wills
- Estate Taxes
- Will Made Before Witnesses
- Contested Wills
- Undue Influence
- Medical Records
- Ab Intestate
- No Will
- Death Certificate
- Will Search
- Rendering Account
- Urgent Court Order
- Long Delays
- Interpretation Of Wills
- Spousal And Child Support Estate Claims
- Power Of Attorney Disputes
- Quebec Death Benefits
Frequently Asked Questions
What are the reasons one can invoke to have a will declared invalid?
The first element in determining if the will is valid depends on whether the person who signed the will had the mental capacity at the time the will was made to make such a decision. To begin with we are all deemed to have legal capacity until the court decides that we do not have legal capacity .The courts have on occasion invalidated wills and determined that there with the lack of capacity at the time the will was made. This is when medical records and other information with respect to the deceased become very important.
If there is no question with respect to capacity, what about if the formalities necessary to complete a will were not respected?
There are three types of wills that are deemed valid in the province of Québec one is holograph will which is a will that is handwritten and signed by the person who had wrote same. This type of will need to be probated before the Superior Court. The second type of will is a will sign before two witnesses. This type of will also need to be approved or probated before the court.The third type of will is one in notarial form.This type of will does not require probate or court approval
If the formalities are deemed to have been properly followed and the will is probated the will is done in notarial form it does not mean that the will cannot be contested for other reasons.
Sometimes a person who may not have completely lost his capacity may have impaired judgment because of his or her fragile circumstances. If a person who takes care of the deceased or a family member who has a lot of opportunities to be around the deceased or a similar type relationship exists and that person exerts a certain amount of pressure on the deceased into making a will or changing a will than same can be questioned before the courts. In certain circumstances a will made with undue influence of a third party can be declared invalid.
Can a family member be completely excluded from a will?
The province of Québec allows a person to choose whomever they wish to be the beneficiary of their estate. That means that a spouse can he be excluded as well as the children of a deceased can be excluded from an estate. However under certain circumstances these people may be in a position to claim support and or compensatory payments from the Estate.The family patrimony has to be partitioned even if a spouse is excluded.
Can a common-law spouse be excluded from an estate?
Simply put if the parties have not been married or are not in a civil union yes the common-law spouse can be excluded from the estate. If there is no will there is no protection for common-law spouses.
Is a handwritten will valid?
A handwritten will can be valid if it meets certain criteria. If it meets these criteria in the fact that there may or may not have been a witness is of no importance.
What if somebody dies without a will and the province of Québec?
The law provides for who will inherit and what share. If the person was married or in a civil union and there was family patrimony the family patrimony the property would be divided between married and civil union couples first. The rest of the property will be used to pay any debts owed before the person died as well as expenses and taxes. Whatever is left will be divided among the many heirs if there are same. The rules as to who inherits when there is no will can be very complicated to understand when there are very many family members living .The marriage or civil union matrimonial regime comes into play.
If somebody is named executor or liquidator of an estate what does that mean?
There are legal obligations that must be fulfilled by a liquidator or an executor.
How does one find out if the deceased person has made a will?
Will a will search can be done in this is done through the Chambre des Notaires and the Barreau of Québec. Even if no will is registered with one or the other of these institutions it does not mean that there is no will. Often a will without formalities can simply be put in a drawer or other place. It behooves those who have access to different possible physical places that may be a spot where the deceased would have left the will.
If a person is separated from their spouse can he or she inherit if the spouse does not have a will?
The answer to the above questions depends. If there is the divorce judgment than your spouse won’t inherit your property. On the other hand if you don’t have the divorce judgment you are still married in the eyes of the law and your spouse can ask for the division of the family patrimony as well is the application of the matrimonial regime and certain support payments for a period of time. The person in this situation should certainly contact you lawyer who has a certain amount of experience in order to determine their rights.
For more questions or legal advice about settling an estate, please contact us to book a consultation.