COVID-19: Quebec notary warns against using websites to create wills

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MONTREAL — As the COVID-19 death toll in Canada continues to rise, notaries and lawyers around the country have seen an increase in calls from people concerned about their wills – or lack thereof.

But because of physical distancing rules, instead of visiting notaries or lawyers to sort out their affairs, many people have begun to turn to online resources where wills can be created electronically. There’s a catch for Quebecers, though: because laws are different in the province, wills made this way often create major problems or could even be invalid.

The differences in laws that render some of these wills useless for Quebecers are hard to pinpoint.

“It’s not just that one law changes here vs. there,” said Ellen Bourque, a notary in Quebec. “The structure of the laws is different. We’re in a civil law system and the rest of North America is in a common law system.”

Bourque said after having a brief look at the websites, she thinks Quebecers may be able to follow the steps to create wills without even knowing they’re problematic in the province. Rather than being notified that they don’t qualify for the service, Quebecers may be fooled into thinking they’ve covered their bases when they really haven’t.

Even in the event of online resources being Quebec-specific, Bourque warns against creating wills this way.

“A pre-drafted will, even drafted for Quebec, can’t make sure that you’re really coordinating what you want to happen and making sure your liquidator or executor can make it happen,” she said.

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Recently, the Quebec government and the Chambre des notaires made it possible for notaries to receive deeds electronically for the duration of the emergency. Ordinarily, to organize these affairs, meetings and signatures need to take place in person.

“We have to be very careful, a notarized deed is like an armoured document, it’s very hard to contest,” Bourque said. “So, our obligation to verify identity and capacity is therefore really, really strict.”

Resources are available for notaries to conduct some of their affairs electronically but whether or not they feel comfortable with this method is for them to decide.

“A pre-existing client that comes to me now for a will, perhaps I’ll be more comfortable verifying their identity and their capacity over an online video conference compared to someone I haven’t met yet,” Bourque said. “It’s going to depend on every circumstance – the level of comfort for notaries.”

Bourque suggests for people to at least call their notaries to inquire about their options.

“The notary might be able to receive them electronically, or at minimum they can assist them to make a basic, alternate form of will until they’re able to meet them in person,” she said.

While the pandemic forces individuals to consider their mortality more closely than they tend to in normal times, Bourque said wills are something people should always have.

“It’s no more or less important in the health emergency,” Bourque said. “The purpose of a will is to make sure things go the way you want them to, and second, to make the estate easier to resolve for your liquidator, which is an executor, and your heirs. Doing that matters all the time.”