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My tools • May 17, 2021

The will and protection mandate

The two essential documents.

The will and protection mandate

We have all, in one way or another, experienced a difficult event such as an illness, disability or death of a loved one. Life is full of unforeseen events and it doesn't just happen to others! Of course, we can't foresee these types of events, but we can prepare for them. How? By making sure you have a will and protection mandate. These two documents are different, and each has a specific purpose. They allow you to ensure that, following your death or in the event of incapacity, important decisions concerning you and your estate will respect the wishes and decisions that YOU expressed when everything was going well.

A will respects your wishes at the time of death.

A will is an essential document that allows you to express your last wishes regarding decisions to be made after your death. It is recommended that you draw up your will at the beginning of your professional life1 when you start accumulating assets. It becomes even more relevant when children arrive. Not only does it ensure that your wishes are clearly expressed at the time of your death, but in some cases, it can also protect loved ones who may not be protected by law.

Three types of wills are recognized by Quebec law:

  • A notarial will: drawn up by a notary and signed before one or two witnesses. This type of will is authentic and takes effect at the time of death.
  • A holograph will: written in full and signed by the testator without the need for witnesses. The law does not allow a technical means for its writing, such as a typewriter, a computer, or other. After the death, this will must be verified, which may cause some delay for the succession.
  • A will made in the presence of witnesses: can be handwritten or typed and must be signed in the presence of the testator and witnesses. As with the holograph will, the will made in the presence of witnesses must be validated after the death.

What happens at the time of your death if you don’t have a will? Your heirs and their respective shares of your succession are determined according to the general legal procedure established by law, rather than any verbal wishes you may have made before your death.

A protection mandate protects you during your lifetime.

This document is often overlooked, but it's just as important as a will and can be drawn up by you or a notary. It allows you to designate a person to take care of either your personal well-being or property in the event of incapacity. You can choose a single person to look after both your well-being and your property, or several people (acting together, or individually). By doing so, you will make managing your finances easier by reducing the time it takes to freeze your bank accounts, among other features. The designated person has authority over you. This person could be your spouse, sibling, friend or any other person you trust. Be aware that you can limit the powers granted to your mandatary for managing your assets, such as prohibiting the sale of your property. In Quebec, the mandate you give to a mandatary in anticipation of your incapacity must be homologated by the court in order to take effect. This homologation can only take place when the mandator's incapacity is made official.

What if you don't have a protection mandate?
In the event of an accident or illness leading to incapacity, your loved ones or any person who has a special interest in you, including the Curateur Public du Québec, must initiate legal proceedings to ask the court to open a protective supervision plan for persons of full age to ensure the management of your personal well-being and property for the duration of your incapacity.

Even though a will and protection mandate are not mandatory, these two documents are very important and you should prepare them with great care and the help of an industry professional. Don't forget to review the clauses of your will and protection mandate in the event of a change in your situation, such as the birth of a child, divorce or separation, following the illness or death of the person you have designated as your proxy, etc.

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