A formally correct Will can be still an invalid and vice versa. This is why the Court of Appeal did remind in Nazzari c Nazzari, 2016 QCCA 1334: improbation is not always necessary. Even if the Will is notarial and you want to render it invalid. Also, as the Court of Appeal mentioned in St-Jean Major c. Archambault, 2004 CanLII 13654 (QC CA), a successful improbation procedure (according to the arts. 2821 CCQ and 258 CPC) does not inevitably invalidate the Will. This Will can still meet the requirements of another form. Concequently, a Court could probate it as such. Also, you can attack a successfully probated Will. The testator might have signed it under undue influence, because of an error or being already incapable, for example. Therefore, it’s important to understand the difference between the form and the substance of the Will. You can contest each of them separately.
Lack of knowledge of the due procedure can make an application fail. For example, sometimes one contests validity of the Will at the stage of formal verification. Or, to the contrary, does not contest formalities in expectation of the hearing on the merits. However, both mistakes could damage the case. In other words, it’s important to pay attention to the stage you are at. A notarial Will does not require probation. All the other Wills go to probation first. At this stage only formal requirements are verified. After that, if the Will stands, an interested person can apply to the Court to invalidate the Will.
This blog post contains only general information, please don’t take it for a legal advice. For all legal questions regarding your particular situation do not hesitate to consult your lawyer.
