Formalities making someone’s last Will valid differ from one country to another (and even among the provinces in Canada of the states in the US). Quebec has a special preference for notarial Wills, but only the Wills prepared and registered by the Quebec notaries count. Any other Will, even notarized, but made in another jurisdiction, requires probation in Quebec.
Foreign Will probation options
It can be probated either as a handwritten Will, or a Will made before two witnesses. In both cases there is a need to prove the testator’s signature authenticity. In case of a handwritten Will it is made by those who closely knew the testator’s handwriting or by a forensic expert. In case of the Will made before witnesses one of the witness has to sign the affidavit confirming the signature and the circumstances of the signing.
If the Will is decades old, finding those witnesses might be problematic, of course. Judicial probation in the original jurisdiction could be used by a Quebec Court as another way to prove the authenticity sought.
Yet, sometimes even with such a foreign probation the Will is not on its face valid in Quebec — if only one person signed as a witness, be it a notary or a lawyer.
In such a situation, the available option is get a judicial confirmation of the Will in the original jurisdiction and then apply for a recognition of the foreign judgment in Quebec. It might be granted, if there is a conclusive proof that the original judgment was final and not reversible on appeal or otherwise. This, of course, takes time, but sometimes this is the only option possible.
Allen Madelin Lawyers work on daily basis with Wills and Estates issues, consulting the clients and representing them in Courts. For details, please contact us by phone: 1 514 904 4017 or by email: [email protected].
