Allan J Gold


Allan J Gold
(514) 849-1621

Lord and Lady MacBeth

(The ins and outs of will making) First of an important two-part series

Picture this. Your son/daughter writes a letter to Ann Landers, who publishes it in her column. The Gazette includes it with the following headline, “BROTHER-IN-LAW SEEMS TO HAVE TAKEN OVER MOTHER’S MONEY”. Your son/daughter signs himself/herself as “Potential Big Loser”, who explains that,.. “My father died in 1988 and left my mother a little over $200,000 in insurance and retirement funds. He also drew up a quickie last-minute will naming his son-in-law (my younger sister’s husband) as executor of his estate. Since that time, my sister and her husband have bought a bigger, more expensive home, ……. What can be done quickly to open my mother’s eyes? I’m concerned.” This is an actual letter taken from the edition as of July 2nd, 1996. It doesn’t paint a pretty picture, don’t you agree? Might I suggest that this situation be avoided?

As is highlighted by the foregoing, haste makes waste and could result in big problems later. Making a will is serious and important business, same to be undertaken by those in the know. However, I suspect that while most of us have some knowledge, many people don’t have a CLEAR AND FULL understanding of what’s involved. Now that I have your attention, here is a synopsis of the ins and outs of will making.

A LAST WILL AND TESTAMENT (also known as a Will) is a document whereby one gives away the property one has at death. The espression, “LAST WILL AND TESTAMENT” contains three (3) key words. The word, “last” is important inasmuch as the law renders the latest document as the one effective and applicable. The second word is “will”, and same is defined by the Webster’s New Complete Dictionary, as a “wish or desire often combined with determination”. The thirdword, “testament” originated in roman imes, and means a solemn declaration of one’s will. A male making a will is a testator, and a female is a testatrix. A recipient under a will is a beneficiary/legatee.

If a person dies with a Will, he is said to have died “testate”. If a person dies without a Will, he is said to have died “intestate”, at which time, the law specifies how one’s property is to devolve unto one’s heirs.

A Will is a legal act that is unilateral, personal and revocable until death. While a Will cannot be made by more than one (1) individual, it should be said that a person may make a Will and another person, such as a spouse, may coincidentally make his/her Will. It must be made in writing and be dated. Usually, when there are extensive changes one revokes the prior Will and does make it anew. However, when one only needs to correct a Will and/or add/replace/delete a provision, one would do this by a “Codicil”.

In Quebec, there are three forms, namely, (i) Holograph Wills, (ii) Wills Made In The Presence Of Witnesses, (formerly known as that “in the form derived from the laws of England”) and (iii) Notorial Wills.

The first type of will owes its name to the greek words, “holos” and “graphe”, same meaning “whole” and “writting” respectively. As can be deduced, this type of Will is to be wholly written and signed by the testator/testatrix. The reason for this is that the handwriting could be evaluated afterwards to ensure that the testator/testatrix was indeed the writer/signer of the Will. A Will prepared on the typewriter or a computer and thereafter signed is not possible under this form. The Holograph Will is the easiest. It is a non-formalistic writing and can be written without any special wording. Upon death, application must be made to the Superior Court to have the Will probated.

A Will Made Before Witnesses may be entirely written by the testator/testatrix as in the case of the Holograph Will or it may be written by another person, and/or can be typed or produced on a computer. However, in order to deal with the issue of date and as to whether the testator/testatrix actually made the Will, two (2) witnesses are required. The witnesses must be of majority age, and coincidentally sign in the presence of the testator/testatrix. They must confirm that the testator/testatrix did indeed make his/her Will as he/she has therein declared. They may not be beneficiaries/legatees or be so “interested”, since any bequest and/or legacy made to a witness is null. For the purpose of confidentiality, at the request of the testator/testatrix, the Will could and should be reviewed before signature without the presence of the witnesses. Each page is to be initialled by the testator/testatrix.

In order to facilitate knowledge of the existence of a Will, a testator/testatrix can leave it with a lawyer for a reasonable fee. The lawyer will do a filing so that one shall be inscribed in a public registry as having made a Will on a particular date, and with the lawyer named as a holder of a duplicate original.

The notarial form involves more formalities. This deed is passed before a notary and a witness. The date and place is mentioned. Confidentiality is possible here as well.

CAUTION/DISCLAIMER: The foregoing article is only for informational purposes and is not meant as legal advice. Seek out legal counsel for your particular needs.


© 2005 Practitioners’ Press Inc./ TM Practitioners’ Press Inc.