What Is A Witness For A Will?
A witness in terms of creating a will is a person who participates in validating the document. A witness is needed to confirm that the testator (will-maker) has indeed signed their own documents. The witness will confirm this by signing the documents as well to make them a legal document.
Do I Need A Witness For A Will In Quebec?
Once you have drafted your will and it accurately reflects your wishes, it’s time to make it a legal document, and witnesses are a key part of that process. The only type of will in Quebec that does not require witnesses is a holograph (handwritten) will. All other types of wills require witnesses. If you create a will in front of witnesses, for example with the $99 Willful will (also known as an attested will), you will need two witnesses. If you create a notarial will, you will only need one witness, and it will be provided by your notary partner.
Think about two people who are accessible to you, such as a neighbour, a colleague, or a family member who lives nearby. You will need to let your witnesses know in advance, so you can organize an appropriate time to get together and sign the will (note that due to COVID-19, several provinces have allowed for virtual witnessing of wills, but Quebec only allows virtual witnessing for notarial wills).
Having your will signed by witnesses is required for the legal validity of your will using Willful. If the validity of your will or your signature come into question, these individuals may have to testify in court to confirm their presence at the time of signing the document.
What Are The Witnessing Requirements By Type Of Will?
Witnessing a Holograph (handwritten) will in Quebec:
- No witnesses required
Witnessing A Will In Front Of Witnesses in Quebec:
- Two witnesses must initial each page of the document and sign the last page
- The signatures must be at the very end of the will
Witnessing A Notarial Will In Quebec:
- There are witnessing requirements for notarial wills, which usually involves the notary and an additional witness
- It must be signed on the last page by the will-maker, witness or witnesses, and the notary in each other’s presence (no requirement to initial each page)
Who Can Witness A Will In Québec?
If you’ve chosen the $99 will option on Willful, here are the witnessing requirements:
- Your witnesses cannot be a named liquidator or their spouse, and cannot be a legatee or their spouse.
- Neither your liquidator or legatees nor their spouses can witness your will. If a witness is a legatee, the gift made to that person will not be considered valid. The best practice is to find witnesses who do not benefit from your will.
- The signatures must be at the very end of the will
- Your witnesses could be any two adults; friends, neighbours or co-workers. Each witness must be at least the age of majority and mentally sound. It’s important to remember that your witnesses are not required to read the will or know its contents.
These requirements are also listed on your instructions page that comes with your Willful documents. There are also specific requirements for witnessing a notarial will, which include the notary and an additional witness.
How Many Witnesses Do I Need?
For a will in front of witnesses, to make your will a legal document, you must sign it, and then have it signed by two witnesses in your presence. If you choose to complete a notarial will, only one witness may be required, and your notary will provide guidance on this.
Can My Witnesses Digitally Sign My Will?
Digital signatures are legal for notarial wills, but they are not legal for a will in front of witnesses.
Will in front of witnesses: If you choose Willful’s $99 will plan, grab a pen! In Quebec, this type of will must be signed on paper. To maximize the likelihood that your requests are met, you will need a will that is physically printed and signed by you and your witnesses in ink— sometimes referred to as a wet signature.
Notarial will: Due to emergency measures put in place due to COVID-19, the Chambre des notaires allowed digital executions of notarial wills. Now, you will likely need to get your will physically signed.
What Is The Signing Process For A Will In Quebec?
Will in front of witnesses (Willful $99 will ): Using Willful, once you are ready to print out all of the documents, read them over thoroughly and review the easy-to-follow instructions page that comes with each document.
- Make sure you understand everything contained in the will before signing.
- Once you’ve chosen and informed your witnesses, organize everyone on a predetermined date and time so that everyone can be present for the signing.
- Make sure to initial each page, and sign in the designated spot on the last page of the will. Once you’ve signed, each witness will initial each page and sign the last page in the designated spot. Quebec law requires initials on each page that does not bear your signature, and a signature on the last page of the will.
- Sequence matters, and the testator (will-maker). must sign before the signature of either of the witnesses.
- Make sure there is only one original copy of the will.
- Do not sign a second will or any photocopies as it will be difficult to distinguish from the original will.
- And that’s it! After the printed document is signed and witnessed, it becomes your legal last will and testament. The most recent wet-signed documents will be considered your official legal documents.
- We recommend customers of Willful destroy/shred past versions of your last will and testament (and other outdated estate planning documents) and follow the same process with two witnesses for every version you wish to make legal.
- Store in a safe place, let the people you trust know where it is stored and carry on with peace of mind knowing your will has been created. Review and update as necessary.
Notarial will: The notary will provide the witness, who will sign the document after you’ve signed. The notary will then register the document with the Chambre des notaires, and they will share a certified copy for your records.
Will My Witnesses Be Required In Future?
If you have a notarial will, your will does not require probate, and your witnesses do not play a role after you pass away.
If you have a will in front of witnesses, your will is required to go through probate, and one of your witnesses will need to provide a sworn affidavit of execution attesting to the fact that they were witness to the creation of your will. You can complete this at the time you execute your will, or a witness can provide it at the time of your passing. If you did not complete one before you pass away, your witness would be required to provide one at the time of your passing. If your liquidator cannot find a witness, or they’ve passed away, they would be required to provide evidence of the search for the witnesses, and they would be required to provide other evidence of the validity of the will (for example a contract with your signature on it).
Your witnesses may also be called before the courts if the validity of the will is called into question, or if there are support claims made.
