The recent case of Morton v. Christian is a reminder to Quebec residents – if you execute a notarial Will, you need to appreciate the manner in which the notarial Will can be revoked.
Notarial Wills stem from the Quebec Civil Code. They are executed before a notary, who then registers the original with the provincial registry and stores the original as an officer of the court. The benefit of this process is that probate is not needed. The downside is that it cannot be revoked by the testator or testatrix by simply destroying a copy of the document, even where there is clear evidence that the copy was in fact destroyed by the testator or testatrix thereby signifying an intention that the destroyed Will should not operate.
Notarial Wills can only be revoked by the creation of a new Will, or by the signing of a testamentary document that is inconsistent with the original Will. Destroying a copy you have is not enough. So if you have executed a notarial Will in Quebec and plan on leaving the province, don’t forget to review your Will to make sure it reflects your intention and will operate effectively in your new home jurisdiction. Otherwise your estate may end up with unintended beneficiaries – like John Christian’s estate.
John Christian was married to Lorraine Morton in 1991 when he made a notarial Will naming her as the sole beneficiary. They then moved to BC and separated in 2009. John died in 2011. His family argued that he had destroyed the copy of the notarial Will he had in his possession. Lynne disputed this. She relied upon the Civil Code provisions applicable to how notarial Wills can be revoked. Even with proof of destruction of a copy by John, this would not have changed the outcome. John’s family was without recourse – Lynne took John’s estate pursuant to the 1991 notarial Will.
A reminder to practitioners and clients alike – if you’ve moved from Quebec, get a new Will in place that will revoke the notarial Will and so advise the former notary.