When inheritance divides the family

A parent dies, and what was supposed to be a shared mourning turns into a tug-of-war. A sister discovers a will written three weeks before the death, in favor of a single child. A brother, appointed liquidator, has not given any sign of life for eight months. The family home remains empty while no one agrees on its value. Civil litigation lawyers see these scenes come back season after season, because money and memories rarely mix.

In Quebec, settling an estate obeys precise rules, which are found for the most part in the Civil Code of Quebec. Knowing these rules before you get carried away is often the difference between a case that is settled in a few months and a dispute that stretches over years. Here’s what you need to understand when an estate goes wrong.

Contesting a will: the real reasons

You don’t challenge a will because you think it’s unfair. The principle in Quebec is the freedom to make a will: a person can bequeath his property to whomever he wants, and even discard his own children. There is no hereditary reserve here, unlike in France. A will is therefore only made for serious reasons, and they are reduced to four families of situations.

First, the defect of form. The holographic will (Article 726 of the Civil Code) must be entirely handwritten by the deceased and signed by hand: a document typed on a computer does not hold water. The will in the presence of witnesses requires two adult witnesses present at the right time. A failure to comply with these requirements may be sufficient to invalidate the act.

Secondly, the testator’s incapacity. Capacity is assessed at the precise moment of signature (Article 707). If a person suffered from advanced cognitive impairment – dementia, Alzheimer’s at a stage where they no longer understood the extent of their assets or who their loved ones were – the will can be challenged. But it still needs to be proven, often with medical records and testimonies.

Then comes capture, also called undue influence. It is not a named section of the Code, but a concept built by the courts on the basis of the consent rules. The idea: a relative, a caregiver, sometimes a newcomer in the life of the deceased would have manipulated his or her will, isolated the person, exerted such pressure that the will no longer reflects a free choice. These cases are delicate, because the line between sincere affection and self-serving manoeuvring is not always clear.

Finally, pure and simple fraud : a forgery, an imitated signature, a document that does not emanate from the deceased. Rarer, but it happens.

A detail that changes everything: as soon as a non-notarial will is contested, it is up to the person who claims it to prove its origin and regularity (Article 773). The burden shifts. This is why the notarial will, which does not need to be verified on death, offers a security that other forms do not have.

The liquidator who does not do his job

The liquidator – formerly known as the executor – is the person who administers the estate: inventory of assets, payment of debts, tax returns, and then distribution. It is a heavy burden, framed by strict obligations. And this is often where the problem lies.

The law requires him to draw up an inventory (Article 794) and, if the liquidation exceeds one year, to submit a management account to the heirs at least once a year (Article 806). A liquidator who remains silent, refuses to show the deceased’s bank statements or delays without reason is not respecting his duties.

What to do in this case? The Code provides a clear remedy: any interested party may apply to the Superior Court for the replacement of a liquidator who neglects his or her obligations (section 791). In the meantime, the court may also appoint a provisional liquidator, have the seals affixed or order the inventory to protect the patrimony (Article 792). And if the liquidator has caused damage through his own fault – squandered property, costly delays – he can be held personally liable.

Common-law partner: the blind spot that has changed in 2025

Here’s the point that many people still don’t know. In Quebec, a common-law spouse does not automatically inherit from his or her deceased partner without a will, regardless of the number of years he or she has lived together. Without a will, the law distributes property to the children and parents of the deceased – and the unmarried spouse can be left with nothing.

However, a major reform came into force on 30 June 2025. The new parental union regime automatically applies to de facto spouses who have a common child born on or after that date. These spouses are now treated, for legal devolution, as married spouses: in the absence of a will, the survivor receives one third of the estate (Articles 653 and 666). For couples without children in common, on the other hand, the old rule remains – nothing without a will. A calendar detail that can be worth tens of thousands of dollars.

Is disinheritance really possible?

Yes, in principle. But the freedom to make a will has an often misunderstood temperament: the survival of the maintenance obligation. A child, married spouse or former spouse who was in receipt of a pension may, within six months of the death, claim a financial contribution from the estate as maintenance (section 684). The law caps these amounts, but the idea is clear: you can’t leave a person you were obliged to support in total destitution. When a case touches on this area, the support of an estate litigation lawyer avoids many missteps.

Before going before the judge

An estate dispute before the Superior Court is expensive and time-consuming – we are often talking about months, sometimes more, while the estate remains frozen. The heirs should first explore mediation, a voluntary mode where a neutral third party helps the family to resolve the impasse. No one is forced to do so, and one can withdraw from it at any time, but many inheritance disputes find there a landing ground that the court does not offer.

One last useful reflex: act quickly. Most inheritance remedies are time-barred after three years, and the passage of time complicates the proof – memoranda that crumble and documents that disappear. Monitoring statutes of limitations from the first suspicion often makes a difference.

Frequently asked questions about inheritance disputes

Can you disinherit your children in Quebec?

In principle, yes: there is no compulsory portion and the freedom to make a will dominates. However, a child who was dependent on the deceased may claim a maintenance contribution to the estate within six months of the death (Article 684 of the Civil Code), within the limits set by law.

My common-law partner died without a will: am I entitled to the inheritance?

As a general rule, no. A common-law partner does not inherit without a will. Exception since June 30, 2025: if you were in a parental union (de facto spouses with a common child born on or after that date), you inherit as a married spouse, i.e. one third of the estate.

How long do I have to contest a will?

In practice, three years (Article 2925 of the Civil Code), the starting point depending on the circumstances, often the moment when the defect becomes known. It is best to consult a lawyer without delay, as the evidence weakens over time.

The liquidator refuses to give an account: what can I do?

Any interested party may apply to the Superior Court for the replacement of a liquidator who neglects his obligations (section 791) and for measures to protect the patrimony (section 792). The liquidator owes an annual account after one year of liquidation, and he can be ordered to pay damages if he has committed a fault.

Is a handwritten will valid?

Yes, this is the holographic will (article 726): it must be entirely written and signed by hand by the testator. Upon death, it must be verified by a notary or by the court before it takes effect. A will typed on a computer is not a valid holograph.