If you’re involved in estate matters in Quebec and have questions about your rights, we can help.
As the number of seniors in Quebec increases, issues related to aging and legal capacity are becoming increasingly important in today’s law.
At Allen Madelin Inc. our experienced lawyers can guide you through every step of the process to ensure your rights are asserted as effectively as possible.
If you are a senior citizen looking for information about your legal rights, or if you have questions about elder abuse or exploitation, you may benefit from consulting an elder law attorney.
If you believe that you or a family member is suffering from abuse, whether financial, psychological or physical, ageism, neglect or violation of your rights, our lawyers can help. They can advise you on your rights, as well as on any legal action that may be necessary in your situation. Contact us to arrange an initial consultation.
There are several valid grounds for contesting a will, including the incapacity of the testator and abuse of influence, also known as "capture". While the principle of testamentary freedom grants the testator the right to bequeath his or her property as he or she sees fit, this does not mean that a will cannot be contested as to its form or content.
Contesting a will requires the assistance of a lawyer. Our lawyers will be happy to answer your questions. And, if you wish, they will accompany you throughout the legal proceedings to assert your rights.
Contact us to arrange for an initial consultation. To better assist you, please also consult this list of documents required to contest a will.
Mandate for Protection in Case of Incapacity
If you have formally designated someone in a protection mandate to be responsible for you and/or your property in the event of illness or accident, our lawyers can help you probate this mandate.
A mandatary may be responsible for decisions regarding place of residence, consent to certain medical treatments, and administration of finances and income. It is important to note that the mandate is not valid until it has been homologated by a court.
If you have any questions about the mandate of protection or the procedure for homologating it, please do not hesitate to contact us.
Setting Up a Protection Plan
If a person becomes incapacitated and has not previously signed a mandate of protection, it is possible to request the establishment of a protective regime. There are two types of protective supervision to choose from, depending on the person's degree of incapacity:
- Advisor to the person of full age: This mode is used when a person is only slightly incapable of administering his or her property, and an advisor is appointed to help with the administration;
- Guardianship: This type of guardianship is used when a person is incapable of taking care of himself or herself or of administering property.
Guardianship
Guardianship of a person of full age is a legal measure designed to guarantee the person's security, the administration of his or her property, and in general, the preservation of his or her rights. This measure is decided by a court when it is established that the person is incapable of making decisions and requires representation to exercise his or her rights.
Frequently, guardianship is assumed by a member of the incapable person's entourage, whether a family member or a close friend. However, it is possible to request that the Curateur public du Québec be appointed guardian of the incapacitated person.
There are two types of guardianship that can best meet the needs of an incapacitated person: guardianship of property and guardianship of the person. It is possible to appoint a single person to deal with both these variants. Or, conversely, to appoint one person as guardian of property and another as guardian of the person.
Contact us to arrange an initial consultation with our legal team. To better assist you, please also consult this list of information required to open or contest a protection regime for an incapacitated person.
There are several stages in the process of homologating a mandate. First, a mandate of protection or incapacity must exist.
Step 1: Proving Incapacity
To homologate a mandate of incapacity, it is important to prove the incapacity of the person concerned by the homologation of the mandate. To prove incapacity, two basic documents are required.
A medical assessment is required to prove the incapacity of the adult concerned. This can be done by a family doctor, psychiatrist, geriatrician or neurologist. The doctor must complete a medical form describing the patient's incapacity. He or she must identify the conditions (illnesses and symptoms) that have an impact on the person's abilities. This medical assessment must also specify the degree of the patient's incapacity.
Next, a psychosocial assessment by a social worker is required. This evaluation assesses the degree of protection the person needs, based on several criteria, such as autonomy and degree of incapacity. The social worker may also ask to meet with the person's next of kin to assess their interests in the homologation of the mandate.
Step 2: Homologating the Protection Mandate at the Superior Court
In order to put the mandate of protection into effect, it is necessary to obtain a judgment. This means that for the mandatary to take active charge of the property and the person who has become incapacitated, a judge must decide to activate the mandate, i.e. to homologate it.
Probate proceedings must be prepared and filed with the Superior Court. The court verifies the existence and validity of the mandate of protection during this judicial process. Once the judgment is rendered, the mandatary can exercise his or her power of attorney. Please note that there may be a waiting period of a few weeks, or even months, before the judgment is rendered. Finally, it is also possible to homologate a mandate of incapacity with the help of a notary in cases where the mandate is not contested. To find out more, contact our team for an initial consultation. Please also consult this list of information required for the homologation of a mandate of incapacity.
In Quebec, not all wills need to be probated.
- Will signed before a notary: If the deceased's last will and testament was signed before a notary, the will does not need to be probated. It is recognized as valid as soon as the person dies.
- Witnessed will: This is a will that must be signed by the deceased in the presence of 2 witnesses. A witnessed will must be probated to be recognized as valid.
- Holograph will: This is a will that must have been entirely handwritten by the deceased. Holograph wills must be probated.
What is the Probate Process?
The probate procedure involves making the deceased's last will and testament official. So that it is recognized by all. Our lawyers prepare an application for probate. This application is filed with the Superior Court of Quebec. The application is usually accompanied by the following documents:
- The original witnessed or holograph will.
- An official copy of the death certificate issued by the Registrar of Civil Status.
- Proof of will search filed with the Quebec Bar and the Chambre des notaires.
- A sworn statement from one of the witnesses to the will. Or, if the will is holographic, a sworn statement from a person who can identify the testator's signature.
Once the procedure and documents have been filed, it may take a few weeks for the will to be probated by the Superior Court.
Contesting the Probate of a Will
It is possible to contest an application for probate of a will on grounds of form or substance.
Here are some examples of will probate challenges.
- A holograph will has not been signed by the deceased.
- The holographic will was made on an electronic medium.
- Holograph wills are not handwritten.
- The will was made before a single witness.
- The testator was the victim of capture.
Contact our legal team for more information, according to your situation.
Would you like to contest a will? Are you in conflict with other heirs and want to have them declared unworthy? Do you want to know the steps involved in liquidating an estate? Have you been appointed liquidator of an estate and are wondering what your obligations are? Would you like to dismiss a liquidator?
Our lawyers have extensive experience in estate law. They are there to advise and guide you in any dispute that may arise in the context of an estate.
Contact our legal team for an initial consultation. Please also consult this list of documents generally required for estate and succession matters.