Peace of mind in estate planning: Five pitfalls to avoid

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Despite the authentic value of a notarial will, it is important to avoid certain pitfalls to ensure the respect of the deceased’s final wishes and to prevent additional costs to the estate.

  1. The will is canceled because of the deceased’s incapacity. It is prudent to retain proof that the testator was mentally “fit” at the time the will was drafted, in order to avoid it being canceled due to the deceased’s incapacity. Although a notary may inquire about the testator’s capacity, it is not within a notary’s mandate to ascertain a person’s legal capacity. A medical consultation and a doctor’s note at a period close to the signature of the will are superior proof of capacity. This is particularly important to consider in cases where the testator was taking medication or was subject to medical supervision (Succession de Blouin, 2019 QCCS 2982).
  2. Subsequent amendments to the will are considered invalid. A testator can modify the provisions of their will by preparing a “codicil” in one of the three legally recognized forms for wills (either notarial, before witnesses or handwritten, called “holograph”). In the case of a holograph codicil or one made before witnesses, certain legal formalities must also be met (articles 712 and following of the C.C.Q.) otherwise the heirs may have difficulty probating the codicil by the court or by a notary (articles 772 and following of the C.C.Q.). For example, a letter of instruction to a notary requesting changes to a will or a letter from the testator to his relatives indicating his wishes, will not necessarily be interpreted as valid codicils (Page Cheung v. Page Lopresti, 2014 QCCS 1751).
  3. The relatives are unaware that a will exists, and they dispose of the deceased’s body contrary to his wishes. When a will contains provisions regarding the disposition of the deceased’s body, it is prudent for the testator to inform his relatives of the will’s existence, thereby avoiding it being discovered only after the funeral. For example, in the case Lapolla Longo v. Lapolla, 2003 CanLII 731, the deceased’s daughters discovered the will after their father’s burial, leading the court to order that the body be exhumed and buried in another location, in accordance with the deceased’s will. Funeral arrangements can be provided in a document other than a will and can even be made verbally. In the absence of such indications, the heirs or the successors decide the manner in which the body is laid to rest (article 42 C.C.Q.).
  4. The liquidator of the estate does not respect their legal obligations. When a testator appoints a liquidator in their will, obtaining the replacement of the liquidator, even temporarily, can be challenging and also expensive for the succession. The court will require evidence such as the liquidator’s disloyal behaviour, a lack of diligence, a conflict between the interests of the liquidator and of the heirs, or wrongful acts towards the estate (Roy v. Roy, 2012 QCCA 305). It is therefore essential for the testator to carefully choose a competent and trustworthy liquidator to manage the administration of the estate.
  5. The final will was drawn up several years ago and no longer reflects the testator’s reality. It is prudent to amend a will, or even revoke an old will and draft a new one, when the testator’s personal or patrimonial situation changes (e.g. due to a marriage, a divorce, new family members, new debts, etc.). Also, an important reminder: a will cannot be made “verbally”. A will (whether it is notarized, made before witnesses or in holograph form) should be periodically updated to ensure that the testator’s assets are transferred to the persons or organizations of his choice. It is also wise to consult a legal advisor periodically to verify whether any recent changes in the law could affect the validity of clauses in a will or of other aspects of an estate plan.