Non contentious proceedings

The notary and non contentious matters

Going to court and a notary are not at first glance a natural marriage. Nonetheless, in Québec, the notary can accompany you in all non contentious matters that must be presented for a judgment in Court.

Indeed, the notary is your choice partner to officialise any matter that is non contested. Whether you wish to apply jointly for a divorce or obtain a probate of a will not made before a notary, our team is there to assist you.

Here is a short study of the different procedures that you could complete with our team of notaries.

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Verification of a will

In Québec, 3 different forms of wills exist, namely :

A holograph will is written by the hand of the testator, signed and dated ;
A will made in the presence of witnesses can be done with the use of technology (will kit) but it must be signed with 2 witnesses. Usually this form is done with a lawyer and is very common outside of Québec;
A notarial will is made before a notary in the presence of a witness.

The 2 first forms of wills require in Québec that a judicial process be undertaken to verify their veracity. A judicial application must be made before the Court or before a notary as determined by the Code of civil procedure to probate the will. As a starting point for the resolution of an estate, it is necessary to execute the preliminary steps of the estate, namely the reception of the death certificate and the will search with the Chambre des notaires and the Barreau du Québec. Furthermore, our team of legal advisers will help you obtain all of the necessary information and documentation to complete the file to the satisfaction of the Courts. As an added bonus, our team of experts can do the entire process either before the court or before a notary which allows you to shorten the delays to obtain the judgment and also to keep the entire process in the control of the notary since the filing of the minutes and conclusions is the judgment on the will.

The Québec will made before a notary does not need to be verified in Québec. It is recognized as valid. Naturally, if you are settling assets outside of Québec, it can be necessary to obtain letters of verification to prove the validity of the Québec will in another territory. Our team of experts can assist you in obtaining this type of judgment.

Furthermore, it is interesting to know that the concept of Joint tenancy does not exist in Québec. Consequently, the assets of a co-owner are not automatically transferred to the surviving owner in the case of a death. A declaration of transmission must be signed before a notary by a person validly authorized to do so. A will made under common-law with a lawyer is usually trated like a will before witnesses and must be probated in court before it may be used.

With us, you are accompanied in the process of probating the will, in the absence of contestation, by rigorous, efficient and thorough professionals.

Incapacity

In our ageing society, we live longer. Unfortunately, many degenerative diseases, like Alzheimer and dementia, as well as head traumas may affect our capacity to make sound decisions in our own interest. When a person is declared medically incapacitated, a legal process is required to have that person declared legally incapacitated. It is clear that a judgment that removes a person’s administrative powers as well as their power to determine their personal care must be well framed by law.

In Québec, the process varies whether the person has drafted a protective mandate or not. In all cases, legal proceedings are undertaken. In the presence of a protective mandate, a list of mandatary documents must be supplied and a judgment homologating the mandate will be issued. The rules of the administration of the mandatary will be those that the mandator has established in his mandate.

In the event that no mandate of protection is found, the court will establish the incapacity of the person and will call an assembly of relatives, persons connected by marriage or a civil union or friends. This assembly shall then determine who is the best person to take care of the vulnerable person. A judgment opening a tutorship or a curatorship and establishing a tutorship counsel will be issued by the court.

It’s interesting to note that when a person administers assets under curatorship of tutorship, they have simple powers of administration. The authorisation of the court will be required to sell the property worth more than 25 000$ of the incapacitated person. Furthermore, frequent reports will be required to the counsel and the Public Curator.

Clearly, when a person becomes incapacitated, multiple procedures may be required. Our notaries are there to help you in a human, accessible and devoted environment to maneuver the court system in Québec in all your non contentious matters.

Adoption

Your child has the mention “unknown father” on his birth certificate or his mother or father are not involved in his life? It is possible in Québec to adopt a child with the consent of his mother and declared father, if applicable. The process of obtaining the necessary consents, the judgment ordering the placement of the child and finally the completion of the process with a judgment declaring the adoption can be daunting when it is started. Fortunately, our team of experienced professionals will accompany you in this long but rewarding process.

The Minor

After a close one passes, it happens that minors inherit of important assets. When the value of the belongings of a minor exceed 25 000$, the Quebec Law requires that a tutorship counsel be set up that and that multiple procedure be done to protect the vulnerable child.

If you find yourself in this situation, don’t hesitate, contact our legal team and we will help elaborate with you the constitution of the tutorship counsel and all of the necessary steps required when administrating an underage child’s patrimony effectively, the whole with respect with the applicable Laws and in his best interest.

Furthermore, certain limitations are imposed by law, namely the requirement of an authorization by the court to sell the real estate property of the minor. Our team is your choice partner to complete your projects and bring them properly to term.