My uncle recently past away and left him a small sum. His will, was a handwritten signed will. My uncle followed the instructions from a will kit sponsored by the legal branch of his province of which he resided (Québec). From my understanding this is considered a holographic will, and by most standards considered legal. It was created months before his death, and no witnesses signed it.
He went to his lawyer who is a notary to handle this. First thing he told him is that the will isn’t any good and he will have to go through a tribunal 5K$. The second thing he told them is that they have to do a search to see if there’s any other wills out there, and he needs his SIN(social insurance number) to do so. No issues with that, it makes sense but he told my father he doesn’t retrieve SIN numbers, it’s up to my father. I checked out the website of the department that issues SIN numbers and in the case of estate issues it says the legal representative of an estate can request SIN numbers.
I’m getting bad feelings about this guy. Should my father look for another, and preferably a probate lawyer instead ?
AFAIK, in Quebec a notary knows everything there is to know about wills. I have always believed that a holographic will needs two witnesses to be legal.
It couldn’t hurt to call a probate attorney or two. In five minutes they can probably tell you whether that’s something they handle or not and how hard it is. You can compare their level of confidence and professionalism vs. your father’s experience with his attorney. Be sure to ask how many of these kinds of things they have done, their hourly rates, and a rough estimate of hours to complete (they’ll probably balk a bit a the last bit, but you can get a ballpark).
Have had experience with having the wrong attorney for the wrong job before. It’s definitely worth calling around a bit. (also IANAL :))
I know nothing of Quebecois law so can’t comment on those matters.
I wouldn’t read too much into the SIN issue - maybe he’s just trying to save your father a few bucks instead of filling out the forms himself and charging for his time?
In Quebec, that is the correct type of legal professional for non-contentious estate work such as non-contentious probating of a will. In Quebec there are two types of lawyers: lawyers who fight at court (avocats) and lawyers who handle non-contentious transactions such as business deals, real estate, and wills and estates (notaries). In Quebec, avocats and notaries are governed by different professional bodies, despite both being lawyers.
Banks, land title offices/registrars and the like don’t want to get in trouble for doing what a will says only to learn later that the will is bogus, so they require proof that the will is authentic. In Quebec, a will made through a notary is deemed to be authentic from the git go, but a will not made through a notary (such as a will with a couple of witnesses or a holographic will) is not deemed to be authentic until it goes through the probate process. If your dad want’s the bank to release the funds, your dad will have to get the will authenticated by having it probated.
In Quebec, a notary can probate a will that is not being challenged by anyone, but if it is challenged, or if there is something about the will that is not clear or possibly botched, then the notary will not probate the will and it will have to go to court to be probated by a judge.
Since your dad’s notary said that the will isn’t any good and must go through a tribunal, then either it is because the will was a bit wonky such that a judge rather than a notary should probate it, or because it was so botched that it was not a will, in which case a court would figure out to do with your dad’s estate and use the botched will as evidence of what your dad wanted.
I can’t comment on the $5k, other than to suggest that you dad find out if it is a guaranteed flat rate, or just a rough estimate, or a retainer deposit to get the meter running, and that your dad should check out to see what competitors cost.
The more work your dad does, the less he will have to pay the notary who charges by the minute. If your dad is not capable of doing the work, then the notary will do it for him provided your dad pays for the notary’s time.
There is nothing in your post that suggests that your dad is not being properly served, but it can’t hurt for him to shop around if he has the time or if, without any particular reason, his spidey sense is tinging.
A general rule of thumb is that it costs more to probate a holographic will than to simply have had it professionally made in the first place, but that’s water under the bridge now for your uncle.
A holographic will in Quebec and in the rest of Canada does not need any witnesses and must not have any witness’s writing on the will – it must be only in the testator’s handwriting, and signed and dated by the testator.
In Quebec there are three types of wills:
holographic wills – they require probate to prove they are authentic
wills with two witnesses – they require probate to prove they are authentic
wills done by a notary – they do not require probate because they are deemed to be authentic
Thanks for all your feedback. I feel a lot more comfortable with this person now. My dad tends to be too lackadaisical about important issues so I will go with him to the next appointment he has to ensure the right questions are asked so that my father knows exactly what’s involved. Getting accurate information from my father is like pulling teeth.
I’ll also inform his lawyer, that my aunt is the only person left who has taken great offense that she is not in his will, and wants her cut.
It’s very important to warn the lawyer about that.
If she was the wife of your uncle (as opposed to his sister), she will get her share of the family patrimony before the beneficiaries of the will get their cuts.
If she was his sister (as opposed to his wife), then she does not have a right to a share of the family patrimony, but it would be in her financial interest to argue that the will was bogus, for that way she would split the inheritance with your dad and other siblings of your uncle under the rules of intestacy.
Safe to say then there’s a high probability the will will not be probated at the tribunal process when I advise the notary of this, if I’m understanding all of this correctly ?
I will advise the notary of my aunt. It’ll be less head ache for me when my father calls me months down the road with a “why isn’t this working out for me” phone call. It’s going to be ugly now or later, that’s the way I’m looking at it.
Given that she is his sister and not his wife, it will come down to the court deciding if the will was properly made by him when he was of sound mind. If so, she’s out of luck. If not, then she and the siblings share. It will be up to the court to decide during the probate process. If she actively contests the will, then the notary would pass the litigation of the file to an avocat.
to handle this. First thing he told him is that the will isn’t any good and he will have to go through a tribunal 5K$. The second thing he told them is that they have to do a search to see if there’s any other wills out there, and he needs his SIN(social insurance number) to do so. No issues with that, it makes sense but he told my father he doesn’t retrieve SIN numbers, it’s up to my father. I checked out the website of the department that issues SIN numbers and in the case of estate issues it says the legal representative of an estate can request SIN numbers.