So What Did My Late Uncle Really Mean?

Nov 14th, 2013

By Barry Landy

You meet a client who tells you the following story:

“My uncle Louis passed away. He was my father’s brother. Never married, never had children. He left a notarial will and listed me and my three brothers as universal legatees. We were at this house, going through his things and we found the will.

Lo and behold, in the margin, the names of my three brothers are erased and covered up, and each erasure  is specifically initialed by my late uncle. I figure he meant I am supposed to be the sole heir, What do you think?”

These facts deal with a number of common misconceptions regarding wills and how a will can be changed.

This is because Quebec law recognizes various forms of wills, in particular, notarial wills, holograph wills and wills made in the presence of witnesses. A notarial will is what it sounds like, a will drawn up, signed and witnessed before a notary.

The original remains in the notary’s records and the client gets an “authentic copy”.

A holograph will is entirely written and signed by the testator; it does not need any witness.

A will made in the presence of witnesses can be typed out and signed by a testator, in front of two witnesses. Each page of the will is initialed by the testator and the witnesses.

If a holograph will or a will made before witnesses, is erased, or torn or destroyed, this can entail a revocation, if this was done by the testator or on his express instructions.

However, a notarial will is a different legal creature. It cannot be tacitly revoked, amongst other reasons because the original resides in the notary’s repertoire, the client only gets a copy, albeit an authentic copy.

It might very well have been the case that Uncle Louis wanted to change his will. Unfortunately, erasing the names of some of the heirs on an authentic copy of a notarial will not be the equivalent of a revocation of a testamentary legacy, even though in some circumstances, (where you are dealing with a holograph will or a will made before witnesses), that might be good enough.

The facts discussed above are similar to the facts found in the recent Court of Appeal decision of St.Aubin v. Prud’homme 2013 QCCA 1848.

Barry Landy is a senior litigation lawyer at Spiegel Sohmer who focuses his practice on commercial litigation and is also experienced in the area of media law.