In Defense of Notarial Wills
D. G. Petrie *
At the last meeting of the Canadian Bar Association in Montreal,
the writer chanced upon a meeting of the newly constituted Wills
and Trusts sub-section. One of the participants in the panel discussion
under way made the startling assertion that the Quebec notarial
will is “a poor second best”. The proposition was that a will drawn
in English form, presumably by an advocate, is infinitely superior.
The English form will executed before two witnesses is universally
recognized. The chief complaint against the notarial will seems to
be the difficulty of obtaining probate in foreign jurisdictions. The
proposition deserves careful examination in view of the increased
mobility of Quebecers. One cannot deny that Quebec people make
wills in notarial form and then having changed domicile, die else-
where and also upon occasion notarial wills are made by persons
domiciled outside Quebec.
The section of the Quebec Civil Code dealing with forms of wills
is contained in Articles 840 to 855. Briefly, these forms are valid :
a) The holograph will must be entirely written and signed by
the testator. It is subject to no other formality; not even a date is
required. It is generally agreed that the holograph will must be hand
written but the Code does not appear to exclude a will typewritten
by the testator. The typing raises some obvious problems of proof.
b) The English form will is executed before at least two competent
witnesses who must sign with and in the presence of the testator.
This will may be either in handwriting, typewriting or printed.
c) The notarial or authentic will is executed before two notaries
or one notary and two witnesses, all of whom must sign in the
presence of the others.
The only exceptions permitted to the aforementioned three forms
are set forth in Articles 848 and 849 with respect to wills executed
in the district of Gaspd where notaries are scarce, and relating to
wills made by military men out of garrison.
There are some obvious advantages to the notarial will. First,
it is always prepared by someone with legal training. Second, being
* Of the Chamber of Notaries, Province of Quebec.
McGILL LAW JOURNAL
I Vol. 11
authentic it is of record in the minutes of the executing notary.
He is required by the notarial code to retain the original will in a
vault having maximum fire proof standards, burglar and dampness
resistance. Therefore, the original is always available and cannot
become lost, destroyed or mislaid. Third, when the testator dies
while domiciled in Quebec, no probate proceedings are required sinr.e
the will is already in authentic form and of official word.
Certified copies may be obtained from the notary or the depos-
itary of his records with no other formality. The original will is
never delivered except upon Court order in unusual circumstances, e.g.
as evidence when the validity of its execution is questioned.
The other provinces of Canada do not admit the authentic char-
acter of the notarial will and consequently such wills are subject to
probate according to the respective laws of each jurisdiction. Since
the common law requires production of the original document for
probate, the two systems of law contradict. The original notarial
will cannot remain in the notary’s repertoire as required by Quebec
law and also be delivered for probate elsewhere.
In order to test the familiarity of the courts in the other provinces
with wills executed in notarial form, a letter was sent to the ap-
propriate officers of the probate courts in each Province. The response
was suprisingly heartening: of the nine common law provinces,
replies were received from six. The letter inquired whether any
special procedure is required for probate of an authentic copy of-
a notarial will. Interestingly enough, both bordering provinces,
Ontario and New Brunswick, have special legislation dealing with
the matter. Presumably the problem arises most frequently in these
two provinces.
In Ontario, the special provisions are contained in the Surrogate
Courts Act I and the Evide~we Act. 2
Section 38 of the Surrogate Courts Act reads as follows
“38. Subject to subsection 3 of section 75, a notarial will made in the
Province of.Quebec may be admitted to probate without the production of
the original will upon filing a notarial copy thereof together with the other
proper proofs to lead grant.”
Section 75 of the same Act reads as follows
“75.
(1) Where probate or letters of administration or other legal docu-
ment purporting to be of the same nature granted by a court of competent
jurisdiction in the United Kingdom or in a province or territory of Canada
or in any other British possession is produced to and a copy thereof deposited
I R.S.O. 1960, ch. 388.
I R.S.O. 1960, ch. 326.
No. 2]
IN DEFENSE OF NOTARIAL WILLS
with the registrar of any surrogate court and the prescribed fees are paid
as on a grant of probate, or administration, the probate or letters of ad-
ministration, or other document shall, under the direction of the judge, be
sealed with the seal of the surrogate court, and thereupon, ic, as to personal
property, of the like force and effect in Ontario as if the same had been
originally granted by such surrogate court, and in so far as regards Ontario,
subject to any order made by such court, or on appeal therefrom, as if the
probate or letters of administration had been granted thereby.
(2) Subject to subsection 3, letters of verification issued in the Province
of Quebec shall be deemed to be a probate within the meaning of this section.
(3) Where it has been shown that the will was executed in manner and
form sufficient to pass real property in Ontario under The Wills Act and
the judge so certifies, the sealing has the same effect as to real property
as if probate had been granted by the surrogate court.
(4) The letters of administration shall not be sealed with the seal of
the surrogate court until a certificate has been filed under the hand of
the registrar of the court which issued the letters that security has been
given in such court in a sum of sufficient amount to cover as well the
assets within the jurisdiction of such court as the assets within Ontario, or
in the absence of such certificate, until like security is given to the judge
of the surrogate court covering the assets in Ontario as in the case of
granting original letters of administration.”
The Evidence Act of the Province of Ontario contains the following
provision with respect to notarial deeds generally:
“35.
(1) A copy of a notarial act or instrument in writing made in
Quebec before a notary and filed, enrolled or enregistered by such notary,
certified by a notary or prothonotary to be a true copy of the original
thereby certified to be in his possession as such notary or prothonotary, is
receivable in evidence in the place and stead of the original, and has the
same force and effect as the original would have if produced and proved.
(2) The proof of such certified copy may be rebutted or set aside by
proof that there is no such original, or that the copy is not a true copy of
the original in some material particular, or that the original is not an instru-
ment of such nature as may, by the law of Quebec, be taken before a notary,
or be filed, enrolled or enregistered by a notary.”
The foregoing applies equally in the case of the testator dying
while domiciled in Ontario and leaving a notarial will and in the case
of the testator dying while domiciled in Quebec, leaving a notarial will
and assets to be administered in Ontario, in which latter case ancil-
lary Letters Probate must be obtained. The forms for application
are the same as for Letters Probate save minor amendments set
forth in Ingram’s Surrogate Guide as follows
The Petition
States the deceased had no fixed place of abode in Ontario but
died leaving assets in this Province to be administered. It also recites
the amount of the estate in Ontario to be administered.
McGILL LAW JOURNAL
[‘1ol. 11
The Oath of Executor :
Clause 1 of this affidavit is amended to read “That the instrument
now produced and shown to me and marked as Exhibit “A” to this
my affidavit is to the best of my knowledge and belief a Notarial
Copy of the last Will and Testament of the said deceased.”
Affidavit of Execution :
This affidavit is completed by the Notary Public; and clause 2
is amended to read :
“That on or about the
, I was personally
present and did see the paper writing of which a Notarial Copy is
hereunto annexed and marked as exhibit “A” of this affidavit ex-
ecuted by the Testator, etc, etc.”.
–
day of
–
Due to long and frequent experience with notarial documents,
the law of Ontario is explicit. There is no question of requiring a
court certificate attesting to the authenticity of the notarial will;
the notarial form is recognized in the statute, and the certified copy
is submitted for probate in Ontario as though it were the original
document.
Similarly, New Brunswick has specific legislation with respect
to notarial wills. The Probate Courts Act 3 at Section 24 (3) provides:
“Where any will sought to be proved is a Notarial will, probate may be
granted upon the production and filing of a certified copy of the will and
a certificate that the will is a valid subsisting and last will under the laws
of the place where such will was executed, which certificate shall be under
the seal of the officer who has the custody of the will.”
It is noteworthy that the notary or officer having custody of
the original will must provide a certificate on the copy to the effect
that the will is a “valid and subsisting last will ,under the laws of
the place where such will was executed”. The certified copy does
not stand alone as it does in Ontario.
In British Columbia, the matter came before a bewildered Reg-
istrar who referred the problem for decision of the Supreme Court
of that Province. The judgment of W.B. Farris, C.J., in the case
of the Estate of Isabel Grace Brock, Deceased,4 was given on 9th
March, 1945.
“In this matter the deceased person died resident in British Columbia.
She had made a will dated the 11th day of April, 1928, in the Province of
3 R.S.N.B. 1952, ch. 175.
4 Unreported judgment of the Supreme Court of British Columbia.
No. 2]
IN DEFENSE OF NOTARIAL WILLS
Quebec, before a Notary of that Province. Later on the 19th of November,
1940, she made in the City of Victoria, Province of British Columbia, a
Codicil of the said will.
Probate of the Will and Codicil is now sought. The original will has not
been produced before me in that it was made in notarial form in the Province
of Quebec, and is held by the Notary there. A document purporting to be a
copy of the will made in notarial form, certified to be a true copy of the
original in his possession, certified by the Notary, has been duly filed.
I have been asked to accept this notarial copy of the will by virtue of
sec. 37 of the Evidence Act, R.S.B.C. 1936, Cap. 90. It is quite obvious to
me that sec. 37 of the Evidence Act was enacted to meet the exact situation
as is indicated by the facts in this matter. (In this matter the Registrar
has approved of the form of the will and codicil and the proof as required
by the Wills Act, subject only to failure to produce the original will.)
I direct that Probate of the said Will and Codicil shall issue.”
The Section 37 of the Evidence Act referred to in the judgment
is now embodied in Section 38 (1) R.S.B.C. 1960, Cap. 134.
In the other Provinces, the rules for application for Ancillary
Letters Probate are applied by analogy. This procedure applies for
any will which is deposited in the Court of the deceased’s domicile
and needs to be probated in another jurisdiction. In each case there
must be annexed to the copy of the will a certificate from the appro-
priate authority of the court showing that it is a true copy of the
original will of record and stating the will is validly executed accord-
ing to the laws of the “locus actum”.
In Saskatchewan, the application is made for a limited grant, that
is, a grant of a certified copy to be valid until such time as the
original may be produced. Then the rules are followed for grant
of Ancillary Letters Probate under Section 29 of the Surrogate Court
Rules. Mention is made in this section of wills “impounded
in a
foreign court”, a closer analogy to the notarial will.
To sum up, then, it does appear that notarial wills offer problems
in foreign probate mainly due to lack of familiarity with the unique
requirement of permanent deposit in the repertoire of the notary.
On the other hand, probate is always available through application
of ancillary probate rules by analogy and even through such ancillary
probate issues from the court of domicile of the deceased testator.
Taking into account the excellent qualities of the notarial will
and its unique form in Canada it would be well for the Provinces
other than Quebec to consider legislation to remove the conflict
resulting from a matter of mere form. Ontario has led the way.
