Entrepreneur or executive: Who will have access to your will?

February 8th, 2018

By Serge Fournier, Partner, Vanessa Gregorio, Lawyer, Julie Loranger, Notary.

When your father dies, you find out that he bequeathed his entire estate to his new wife and named her liquidator of the succession. She refuses to let you see the will. What can you do?

A will is a private act that allows a testator to plan the consequences of their death and express their final wishes. However, it is understandable that a family member excluded from the succession by the testator would want to consult the will in order to comprehend the deceased’s decision and possibly even contest the will. While it is always preferable to reach an agreement with the liquidator of the succession, the notary can also disclose the will in certain cases.

The law states that a will must remain confidential and may only be disclosed to specific individuals. Under the former Code of Civil Procedure, only the heirs were entitled to a copy or extract of a notarized will. Notaries are bound by professional secrecy and must refuse to provide a copy of the will to people who were not named as heirs in the act, even if they are the deceased’s children.

The list of people authorized to receive a copy or extract of the will was enlarged following the reform of the Code of Civil Procedure. Since January 1, 2016, a notary to whom a request is made, once their fees have been paid, must provide a copy or extract of the act to anyone who would have inherited from the estate had it not been for the will. According to circumstances and the order provided at law, this includes the testator’s married spouse, children, grandchildren, brothers, sisters or parents. A de facto spouse who does not inherit cannot ask for a copy of the will under this provision, even after 10 years of living together. In theory, the legislative amendment therefore facilitated access to the will for those who might have an interest in seeing it contested.

An individual who asks the notary to disclose the will must not only establish that the testator is dead (by a death certificate issued by the Directeur de l’état civil), but that they have an interest under article 484 of the Code of Civil Procedure, either by a birth certificate, any other document that proves that they are an heir of the deceased or by affidavit. Note that it is not enough to be the deceased’s grandchild to be entitled to receive a copy of the will. The notary must assess each case before disclosing the document.

Article 484 of the Code of Civil Procedure is of public order, and it is no longer possible to include a provision in your will denying access to the document by people who would have received your property had you died intestate. It is a good idea to talk to the notary drawing up your will about drafting a separate document that explains the reasons why you chose to omit relatives as heirs under your will, so that they cannot use this exclusion as justification for accessing the will. Property bequests not contained in a will are declared null, but personal reasons justifying the exclusion of a family member can be included in a separate document and will remain confidential should your will be disclosed to the excluded family member. Therefore, even if one of your legal heirs asks to see a copy of your will, they will not have access to the reasons why you bequeathed your property as you did, barring a court order.

You can apply to the court for an order forcing the notary to provide a copy or extract of the act where the notary refuses to give you access to the will on the ground that you do not have the necessary interest, or fails to reply to your request. You must, however, justify any right or interest in obtaining such a document.

Do not hesitate to contact a member of our Wealth Protection team for advice on planning for death or incapacity.

Article 484 referred to above has created some ambiguity as to whether the notary is obliged to disclose the will in its entirety or simply disclose the relevant provisions in an extract. The case law on this issue should be monitored.