Civil Code of Québec, C.c.Q.

The succession devolves according to the prescriptions of law unless the deceased has, by testamentary dispositions, provided otherwise for the devolution of his property. Gifts mortis causa are, in that respect, testamentary dispositions.

The succession of each of the decedents then devolves to the persons who would have been called to take it in his place.

In the case of a substitution or trust, persons who have the required qualities when the disposition produces its effect in their regard may also inherit.

A trustee may receive a legacy intended for the trust or a legacy to be used to accomplish the object of the trust.

(1)   a person convicted of making an attempt on the life of the deceased;

(2)   a person deprived of parental authority over his child while his child is exempted from the obligation of providing support, in respect of that child’s succession.

(1)   a person guilty of cruelty towards the deceased or having otherwise behaved towards him in a seriously reprehensible manner;

(2)   a person who has concealed, altered or destroyed in bad faith the will of the deceased;

(3)   a person who had hindered the testator in the writing, amendment or revocation of his will.

The heirs are not, unless by way of exception provided for in this Book, bound by the obligations of the deceased to a greater extent than the value of the property they receive, and they retain their right to demand payment of their claims from the succession.

The heirs are seised of the rights of action of the deceased against any person or that person’s representatives, for breach of his personality rights.

The option is indivisible. However, a successor called to the succession in several ways has a separate option for each.

During the period for deliberation, no judgment may be rendered against the successor as an heir unless he has already accepted the succession.

If a successor does not exercise his option within the time determined by the court, he is presumed to have renounced.

Each of the heirs of the successor exercises his option separately; the share of an heir who renounces accrues to the coheirs.

Acceptance is express where the successor formally assumes the title or quality of heir; it is tacit where the successor performs an act that necessarily implies his intention of accepting.

(1)   in the case of an unemancipated minor, a person of full age under tutorship or curatorship or an absent person, by the representative of the successor with the authorization of the tutorship council;

(2)   in the case of an emancipated minor or person of full age who requires assistance, by the successor himself, assisted by his tutor or his adviser.

In no case is the minor, the protected person of full age or the absent person liable for the payment of debts of the succession amounting to more than the value of the property he receives.

The same rule applies to renunciation in favour of one or more coheirs, even by gratuitous title, and to renunciation by onerous title, even though it be in favour of all the coheirs without distinction.

The same rule applies to an act rendered necessary by exceptional circumstances which the successor performs in the interest of the succession.

Acceptance by a successor of the transmission in his favour of a site intended for a body or ashes does not entail acceptance of the succession.

He may also alienate movable property which, although not perishable, is expensive to preserve or is likely to depreciate rapidly. In this case, he acts as an administrator of the property of others.

Express renunciation is made by notarial act en minute or by a judicial declaration which is recorded.

Acceptance is made by notarial act en minute or by a judicial declaration which is recorded.

The heir takes the succession in its actual condition at that time and subject to the acquired rights of third persons in the property of the succession.

The acceptance has effect only in favour of the creditors who applied for it, and only up to the amount of their claim. It has no effect in favour of the person who renounced.

In the collateral line, the number of degrees is equal to the number of generations between the successor and the common ancestor and between the common ancestor and the deceased.

Representation is allowed whether the children of the deceased compete with the descendants of a represented child, or whether, all the children of the deceased being themselves deceased or unworthy, their descendants are in equal or unequal degrees of relationship to each other.

If one root has several branches, the subdivision is also made by roots in each branch, and the members of the same branch share among themselves by heads.

The spouse takes one-third of the succession and the descendants, the other two-thirds.

If there is representation, they share by roots.

The brothers and sisters of the deceased and their descendants in the first degree are privileged collaterals.

Where there are no privileged ascendants, the privileged collaterals inherit the entire succession, and vice versa.

Where this is not the case, the share which devolves to them is divided equally between the paternal line and the maternal line of the deceased; persons fully related by blood partake in both lines and those half related by blood partake each in his own line.

If the privileged collaterals are in one line only, they inherit the entire succession to the exclusion of all other ascendants and ordinary collaterals in the other line.

Where there are no descendants of privileged collaterals, the entire succession devolves to the ascendants and the other collaterals, and vice versa.

In each line, the persons who inherit share by heads.

Where in one line there is no ascendant in the second degree, the share allotted to that line devolves to the closest ordinary collaterals descended from that ascendant.

The right exists even where the creditor is an heir or a legatee by particular title or where the right to support was not exercised before the date of the death, but does not exist in favour of a person unworthy of inheriting from the deceased.

The contribution made to the creditors of support, with the exception of that made to the former spouse of the deceased who was in fact receiving support at the time of the death, is fixed with the concurrence of the liquidator of the succession acting with the consent of the heirs and legatees by particular title or, failing agreement, by the court.

Account is also taken of the assets of the succession, the benefits derived from the succession by the creditor of support, the needs and means of the heirs and legatees by particular title and, where that is the case, the right to support which may be claimed by other persons.

The contribution granted to the former spouse is equal to the value of twelve months’ support, and that granted to other creditors of support is equal to the value of six months’ support; however, in neither case may such a contribution, even where the creditor was in fact receiving support from the deceased at the time of the succession, exceed the lesser of the value of twelve or six months’ support and ten per cent of the value of the succession including, where that is the case, the value of the liberalities.

Liberalities to which the spouse or descendant consented may not be reduced, however, and those he has received shall be debited from his claim.

If need be, the court fixes the share that shall be payable by each of the beneficiaries sued or impleaded.

Payment in kind may not be ordered, but the debtor may relieve his debt at any time by handing over the property.

Liberalities in the form of a usufruct, right of use, annuity or income from a trust are counted at their capital value on the opening day of the succession.

Any testamentary disposition which would render this right nugatory without otherwise providing for the devolution of the property is without effect.

It is not liable for obligations of the deceased amounting to more than the value of the property it receives.

No property of a succession may be mingled with the property of the State so long as it remains under the administration of the Public Curator.

The Public Curator gives and publishes a notice of the end of the liquidation in the same manner as for a notice of seisin of the State. He indicates in the notice the residue of the succession and the time granted to successors to assert their rights of heirship.

Heirs who establish their quality may, however, within ten years from the opening of the succession or from the day their right arises, recover those amounts from the Public Curator with interest calculated at the rate prescribed pursuant to the Public Curator Act from the time the amounts were transferred to the Minister of Finance.

In no case may a will be made jointly by two or more persons.

However, if a will made in one form does not meet the requirements of that form of will, it is valid as a will made in another form if it meets the requirements for validity of that other form.

The date and place of the making of the will shall be noted on the will.

The will, after being read, is signed by the testator, the witness or witnesses and the notary, in each other’s presence.

However, where special formalities are attached to certain wills, the reason for their observance shall be mentioned in the act.

In the will, the notary declares that he has read the will in the presence of the witnesses, and this declaration also is read.

In the will, the testator declares that he has read it in the presence of the notary and, where such is the case, the witness.

If the testator is deaf-mute, the declaration is read to him by the notary in the presence of the witness; if he is deaf, it is read aloud by the testator himself, in the presence of the notary and the witness.

Any person of full age may witness a notarial will, except an employee of the attesting notary who is not himself a notary.

It is subject to no other formal requirement.

After making the will, the testator declares in the presence of two witnesses of full age that the document he is presenting is his will. He need not divulge its contents. He signs it at the end or, if he has already signed it, acknowledges his signature; he may also cause a third person to sign it for him in his presence and according to his instructions.

The witnesses thereupon sign the will in the presence of the testator.

The absence of initials or a signature on each page does not prevent a will made before a notary that is not valid as a notarial will from being valid as a will made in the presence of witnesses, if the other formalities are observed.

The testator, in the presence of the same witnesses, declares that the document read is his will and signs it at the end or causes a third person to sign it for him in his presence and according to his instructions.

The witnesses thereupon sign the will in the presence of the testator.

(1)   the ownership of an aliquot share of the succession;

(2)   a dismemberment of the right of ownership of the whole or of an aliquot share of the succession;

(3)   the ownership or a dismemberment of the right of ownership of the whole or of an aliquot share of all the immovable or movable property, private property, property in a community or acquests, or corporeal or incorporeal property.

Sufficient expression by the testator of a different intention takes precedence over the rules referred to in the first paragraph and the meaning ascribed to certain terms.

He is not liable for the debts of the deceased on the property of the legacy unless the other property of the succession is insufficient to pay the debts, in which case he is liable only up to the value of the property he takes.

He may be unworthy to receive on the same grounds as for succession; like a successor, he may apply to the court to declare an heir or a colegatee by particular title unworthy.

In all other respects, the legatee by particular title is subject to the provisions of this Book respecting legatees.

This rule also applies to the rights attached to bequeathed securities, if they have not yet been exercised.

The right of the legatee to a legacy made under a condition is also transmissible unless the condition is of a purely personal nature.

There is no representation in the matter of legacies by particular title, however, unless the testator has so provided.

A legacy also lapses where the legatee refuses it, is unworthy to receive it or, again, where he dies before the fulfilment of the suspensive condition attached to it, if the condition is of a purely personal nature.

If the loss of the property occurs at the death of the testator, at the opening of the bequest or subsequently, the insurance indemnity is substituted for the property that perished.

This is also the case where a legacy is made to remunerate the person appointed by the testator as tutor to a minor child or designated by him to act as the administrator of the property of others.

It is also presumed to be made jointly when the entire property is bequeathed by the same act to several persons separately.

Thus, a clause limiting the rights of a surviving spouse in the event of a remarriage or new civil union is deemed unwritten.

An exheredation taking the form of a penal clause intended for the same purpose is also deemed unwritten.

The same is true of that part of the legacy made to the liquidator or to another administrator of property of others designated in the will which exceeds his remuneration, if he acts as a witness.

A legacy made to a member of a foster family while the testator was residing with that family is also without effect.

Revocation of the legacy entails revocation of the designation of the spouse as liquidator of the succession.

The same rules apply if the marriage or civil union is declared null during the lifetime of the spouses.

A revocation that does not specifically refer to the revoked act is nonetheless express.

Revocation is entailed also where the testator was aware of the destruction or loss of the will and could have replaced it.

The revocation retains its full effect even if the subsequent disposition lapses.

Revocation subsists even if the alienated property has returned into the patrimony of the testator, unless a contrary intention is proved.

If the forced alienation of the bequeathed property is annulled, it does not entail revocation.

The known heirs and successors shall be summoned to the probate of the will unless an exemption is granted by the court.

In the case of contestation of an already probated will, the burden is on the person who avails himself of the will to prove its origin and regularity.

The liquidator may even claim the property against the heirs and the legatees by particular title.

The designation or replacement of the liquidator of the succession is published in the register of personal and movable real rights and, where applicable, in the land register. Registration of the act of designation or replacement is obtained by presenting a notice which refers to the act of designation or replacement, identifies the deceased and the liquidator and contains the description of the immovables concerned, if any.

This separation operates in respect of both the creditors of the succession and the creditors of the heir or the legatee by particular title.

In that case, payment of the creditor of the succession comes only after payment of the creditor of each heir whose claim arose before the opening of the succession. However, a creditor of the heir whose claim has arisen since the opening of the succession is paid concurrently with the unpaid creditors of the succession.

A legal person authorized by law to administer the property of others may hold the office of liquidator.

A person designated by a testator to liquidate the succession or execute his will has the quality of liquidator whether he was designated as administrator of the succession, testamentary executor or otherwise.

If one of the liquidators is prevented from acting, the others may perform alone acts of a conservatory nature and acts requiring dispatch.

He is entitled to remuneration if he is not an heir; if he is an heir, he may be remunerated if the will so provides or the heirs so agree.

If the remuneration was not fixed by the testator, it is fixed by the heirs or, in case of disagreement among the interested persons, by the court.

If a liquidator required to furnish security fails or refuses to do so, he forfeits his office, unless exempted by the court.

During the proceedings, the liquidator continues to hold office unless the court decides to designate an acting liquidator.

The costs of inventory and seals are chargeable to the succession.

The notice is also published in a newspaper circulated in the locality where the deceased had his last known address.

If they give their consent, the heirs, and the successors having by that fact become heirs, are liable for the debts of the succession beyond the value of the property they take.

If the mingling is done after the inventory but before the end of the liquidation, they are personally liable for the debts up to the value of the mingled property.

If the deceased made a will, the liquidator causes the will to be probated and takes all the necessary steps for its execution.

To do this, he may alienate, alone, movable property that is perishable, likely to depreciate rapidly or expensive to preserve. He may also alienate the other property of the succession with the consent of the heirs or, failing that, the authorization of the court.

The liquidator pays the ordinary public utility bills and pays the outstanding debts as and when they become due or according to the agreed terms and conditions.

The liquidator may pay the ordinary public utility bills and the debts in urgent need of payment before the expiry of that time, however, if circumstances require it.

If property remains after the creditors have been paid, the liquidator pays the creditors of support, pro rata to their claims if he is unable to pay them fully, and he then pays the legatees by particular title.

The alienation or reduction is effected in the order and in the proportions agreed by the legatees. Failing agreement, the liquidator first reduces the legacies not having preference under the will nor involving determined things, pro rata to their value. Where the property is still insufficient, he alienates the objects of legacies of determined things, then the objects of legacies having preference, or reduces such legacies pro rata to their value.

The legatees may always agree to another mode of settlement or be relieved by giving back their legacies or equivalent value.

The creditors also have a subsidiary action against the other creditors in proportion to their claims, taking account of causes of preference.

In no case do they have an action if they present themselves after the expiry of three years from the discharge of the liquidator, or any preference over the personal creditors of the heirs or legatees.

It ends on the discharge of the liquidator.

The final account indicates the debts and legacies left unpaid, those guaranteed by security or assumed by heirs or legatees by particular title and those whose payment is settled otherwise, specifying the mode of payment for each. Where applicable, it establishes the reserves needed for the satisfaction of future judgments.

The liquidator shall append a proposal for partition to his account if that is required by the will or the majority of the heirs.

If an amicable account cannot be rendered, the account is rendered in court.

Closure of the account is published in the register of personal and movable real rights by registration of a notice identifying the deceased and indicating the place where interested persons may consult the account.

Where a succession devolves to several heirs, each of them is liable for the debts only in proportion to the share he receives as an heir, subject to the rules governing indivisible debts.

The relative contributions of the legatee by general title of the usufruct and of the bare owner to the debts are established according to the rules prescribed in the Book on Property.

If a legacy is imposed on a specific heir, however, the action of the legatee by particular title does not lie against the others.

Where a legacy by particular title is made jointly to several legatees, each of them is liable for the debts and legacies only in proportion to his share in the bequeathed property, subject to the rules on indivisible debts.

Similarly, a servitude is borne without recourse by the legatee of the property charged with it.

Where the rights of action of the unpaid creditors or legatees are exercised after partition, those of the heirs or legatees who paid more than their share are exercised, where such is the case, according to the rules applicable to the warranty of co-partitioners, unless the act of partition stipulates otherwise.

The changes may not be set up against the creditors; they operate only between the heirs and the legatees by particular title.

If the heirs disagree, partition may not take place except under the conditions laid down in Chapter II and in the forms required by the Code of Civil Procedure.

It may be renewed until the death of the married or civil union spouse or until the majority of the youngest child of the deceased.

Partition of an immovable is deemed to have been carried out even if parts remain which are common and indivisible or which are intended to remain undivided.

If the undivided shares are unequal, as many shares are composed as necessary to allow a drawing of lots.

Consideration may also be given to, among other things, the fiscal consequences of the allotments, the intention shown by certain heirs to take charge of certain debts or the convenience of the mode of allotment.

So far as the breaking up of immovables and the division of enterprises can be avoided, each share shall, as far as possible, be composed of movable or immovable property and rights or claims of equivalent value.

Any inequality in the value of the shares is compensated by a payment in money.

If they consider it necessary to sell the property to be partitioned or some of it, they also reach a consensus on the terms and conditions of sale.

Before the drawing, each undivided owner may contest the composition of the shares.

If the value of the property exceeds the share due to the spouse, he or she keeps the property, subject to a payment in money as compensation.

A successor who renounces the succession is under no obligation to make any return.

A return is due even if the person who represents the other has renounced the succession of the person represented.

It is due only from one coheir to another and is not due to the legatees by particular title or to the creditors of the succession.

Any provision requiring the heir to make a return in kind is without effect. However, the heir may elect to make the return in kind if he still owns the property, unless he has charged it with a usufruct, servitude, hypothec or other real right.

As far as possible, pre-takings are made in property of the same kind and quality as the property due to be returned.

If it is impossible to pre-take in the manner described, the heir returning may either pay the cash value of the property received or allow each coheir to pre-take other equivalent property from the mass.

Bequeathed property, and that which remains in the succession, is valued according to its condition and value at the time of partition.

It is also reduced by the amount of the necessary disbursements.

Conversely, the value is increased by the decrease in value resulting from the actions of the person making the return.

In either case, he shall return any indemnity paid to him for the loss of the property.

These debts are subject to return even if they are not due when partition takes place; they are not subject to return if the testator provided for release therefrom to take effect at the opening of the succession.

Compensation also operates if the claim exceeds the debt and the heir remains creditor for the excess.

The pre-taking effected by the coheirs or the debiting of the amount to the share of the heir may be set up against the personal creditors of the heir who is bound to make the return.

A returnable debt bears interest from the death if it precedes the death and from the date when it arose if it arose after the death.

Each co-partitioner is deemed to have inherited, alone and directly, all the property included in his share or which devolves to him through any partial or complete partition. He is deemed to have owned the property from the death, and never to have owned the other property of the succession.

Each heir is then deemed to have made the acts concerning the property which devolves to him.

The setting up of claims against debtors is subject to the rules of the Book on Obligations relating to assignment of debts.

Each co-partitioner remains a warrantor nevertheless for any eviction caused by his personal act or omission.

The loss is valued as on the day of the partition.

A supplementary or corrective partition may be effected, however, in any case where it is to the advantage of the co-partitioners to do so.