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Amending a will

You can amend your will, or replace it entirely, as often as you want to ensure it reflects your last wishes. For instance, you can amend it after a separation or divorce. Only your most recent will is valid, and will be implemented once it is probated.

Codicil

A codicil is an addition or change made to your will in a separate document of a testamentary nature. 

The document containing the codicil must meet the same conditions as the will in order to be valid. 

The codicil may be in a different form from your initial will. For example, a holograph codicil may amend or change the conditions of a notarial will. 

In any event, it must be drawn up carefully to avoid interpretation issues arising from the revocation of parts of the previous will. It is generally better to draw up a new will rather than amend an existing one. The codicil must be read alongside the will it amends. People will see what you had written previously and what you have changed. This could lead to arguments.

If your will and your codicil have not been drawn up before a notary, they must be probated. This must be done by a notary or by the court. The costs will be borne by the succession.

“Surviving spouse” clause in a marriage or civil union contract

Your marriage or civil union contract may contain a testamentary provision called a gift mortis causa. For example, they may provide for the transfer of a particular piece of property, several pieces of property or all of a person’s property to their spouse after the person’s death.

The “surviving spouse” clause makes your surviving spouse the sole inheritor of all your property. The clause has the same legal force as a notarial will.

If your contract states that the clause is irrevocable, you must obtain your spouse’s consent in order to change it. This will allow you to make a separate will. If your contract states that the clause is revocable, you can make a will without your spouse’s consent.

Since marriage and civil union contracts are required to be notarized and notaries are required to register notices of contracts containing gift mortis causa provisions in the Register of Testamentary Dispositions of the Chambre des notaires du Québec This hyperlink will open in a new window., a reference to these contracts will come up during a will search.

Last update: December 5, 2022

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