{"id":22937,"date":"2026-09-26T08:54:04","date_gmt":"2026-09-26T12:54:04","guid":{"rendered":"https:\/\/www.virtulexavocats.com\/?p=22937"},"modified":"2026-09-26T08:55:24","modified_gmt":"2026-09-26T12:55:24","slug":"challenging-a-will-in-quebec-your-remedies-and-their-limits","status":"publish","type":"post","link":"https:\/\/www.virtulexavocats.com\/en\/challenging-a-will-in-quebec-your-remedies-and-their-limits\/","title":{"rendered":"Challenging a Will in Quebec: Your Remedies, and Their Limits"},"content":{"rendered":"

Being cut out of an estate is not always illegal \u2014 here are the rare cases where the law allows a deceased person’s wishes to be overturned.<\/em><\/p>\n

Sylvie is 58. Her mother died in February, at 89, after three difficult years. During those three years, it was Sylvie’s younger brother who moved in with their mother, answered the phone and accompanied her to the notary’s office. When the will was read, the shock was brutal: a document signed eight months before the death leaves the house, the investments and the furniture to the brother. Sylvie and her other sister each receive one dollar, “to show they were not forgotten.” Sylvie is convinced her mother would never have written that on her own. She wants to know whether the will can be annulled \u2014 and whether she has already waited too long.<\/p>\n

First, an unpleasant truth: disinheriting is not prohibited<\/h2>\n

In Quebec, freedom of willing<\/strong> is nearly absolute. Any capable person may settle the devolution of their property otherwise than as the law provides. There is no “reserved share” here as in France, nor any general remedy for an unfair will as in several Canadian provinces. A parent may leave the entire estate to a single child, a neighbour or a charity, and cut out the others without a word of explanation.<\/p>\n

What the law does prohibit is locking in<\/strong> that freedom through threats. A penal clause designed to prevent an heir from contesting the validity of the will \u2014 the famous “whoever contests loses their legacy” \u2014 is deemed unwritten<\/strong>: it produces no effect at all. You may contest without thereby forfeiting what was left to you.<\/p>\n

The trap: going to war because the division is unjust. Unfairness is not, in itself, a legal ground. You need a specific defect.<\/p>\n

Having an heir declared unworthy of inheriting<\/h2>\n

Unworthiness is the sanction for the heir’s conduct toward the deceased. There are two categories.<\/p>\n

Unworthiness by operation of law<\/strong> is automatic. It covers only two cases: a person found guilty of making an attempt on the life of the deceased, and a parent deprived of parental authority over their child, with an exemption from the obligation of support, with respect to that child’s estate.<\/p>\n

Discretionary unworthiness<\/strong> must be requested from the court. It covers a person who subjected the deceased to ill-treatment or otherwise behaved toward them in a highly reprehensible manner<\/strong>, a person who in bad faith concealed, altered or destroyed the will, and a person who hindered the testator in writing, amending or revoking their will.<\/p>\n

The threshold is very high. Fraud, violence, abandonment in serious circumstances: yes. A twenty-year falling-out, absence from the dying person’s bedside, refusal to return a phone call: no. The conduct in question must be deliberate and seriously wrongful.<\/p>\n

Two limits. First, forgiveness<\/strong>: an heir is not unworthy if the deceased, knowing of the cause of unworthiness, nonetheless conferred a benefit on them, or did not modify the legacy when they could have done so. Second, the deadline<\/strong>: the application must be brought within one year of the opening of the succession or of learning of the cause. That year goes by quickly.<\/p>\n

Attacking the will itself: incapacity, captation, defect of form<\/h2>\n

This is the most common route, and the most demanding when it comes to proof.<\/p>\n

The testator’s incapacity.<\/strong> Capacity is assessed at the time the will was made<\/strong>, not six months later. A diagnosis of a neurocognitive disorder does not automatically make a will null: it must be shown that on the day of signing, the person no longer understood the significance of what they were doing. Since capacity is presumed, the burden rests on the person contesting. Medical notes, assessments, testimony from relatives and from the professional who received the act then become decisive.<\/p>\n

Captation and undue influence.<\/strong> Captation<\/em> \u2014 a civil law concept \u2014 refers to illicit manoeuvres: pressure, isolation, repeated lies about the other heirs, by which someone takes hold of the testator’s will. It is a form of fraud. It is not enough to show that a person was very present or dearly loved; you must establish that their manoeuvres led the testator to sign a will they would not otherwise have signed. Certain signs carry real weight: a sudden change of attitude toward the family, the omnipresence of the beneficiary, a will reflecting exactly what that person considers “fair,” disparagement of the other relatives.<\/p>\n

Defect of form.<\/strong> The formalities of each type of will are required on pain of nullity. A holograph will must be written entirely<\/strong> by the testator’s own hand and signed, without any technical means: a will typed on a computer and then signed is not holograph. A will made in the presence of witnesses requires the presence of two witnesses of full age and their signatures. The law does, however, provide a saving mechanism: a will that does not fully satisfy the requirements of its form is nonetheless valid if it satisfies them in substance and contains, certainly and unequivocally, the last wishes of the deceased.<\/p>\n

The trap: believing that probate of the will settles the question. Probate merely takes note of appearances. The law expressly provides that a probated will may afterwards be contested by any interested person who did not oppose the probate.<\/p>\n

The support claim against the estate: six months, not a day more<\/h2>\n

There is an often-overlooked way in: the survival of the obligation of support<\/strong>. Any support creditor may, within six months<\/strong> of the death, claim a financial contribution from the estate. This covers the persons to whom the deceased owed support: the married or civil-union spouse, parents and children in the direct line in the first degree, as well as a former spouse who was receiving support payments.<\/p>\n

This is not a back door to an inheritance: the caps are strict. For the spouse or a descendant, the contribution may not exceed the difference between half<\/strong> of the share they would have received had the entire estate devolved according to law and what they actually receive. For a former spouse, it equals twelve months of support; for any other support creditor, six months \u2014 never exceeding 10% of the value of the estate<\/strong>. A useful detail: for the calculation, the value of gifts made by the deceased in the three years before the death is added back to the estate.<\/p>\n

The common-law spouse and the union parentale regime<\/h2>\n

Since June 30, 2025<\/strong>, the regime of union parentale<\/strong> \u2014 a new “parental union” status created for common-law couples who are parents \u2014 has changed the picture. It arises automatically when common-law spouses become parents of the same child born or adopted on or after that date, or when parents of the same child become common-law spouses. Couples who were already parents before that date may opt in by notarial act or by a private writing signed before two witnesses.<\/p>\n

The effect on inheritance is major: article 653 of the Civil Code now places the spouse in a union parentale among the legal heirs, on the same conditions and for the same shares as a married or civil-union spouse \u2014 one third where there are descendants, two thirds where only the deceased’s parents survive, and the whole where there are no descendants, no ascendants and no privileged collaterals.<\/p>\n

By contrast, a common-law spouse who is not<\/strong> in a union parentale \u2014 a couple without a common child, or a child born before June 30, 2025 without opting in \u2014 still inherits nothing in the absence of a will. And since there is no obligation of support<\/strong> between common-law spouses, that spouse cannot invoke the six-month support claim described above either. What remains are the ordinary remedies against the estate \u2014 unjust enrichment and tacit partnership \u2014 which are generally prescribed by three years. This legislative choice is debated: the Commission des droits de la personne et des droits de la jeunesse found the new regime’s protections insufficient and recommended, without success, adding an obligation of support between spouses.<\/p>\n

Key takeaways<\/h2>\n
    \n
  1. Disinheriting an adult child is not illegal in Quebec: the unfairness you feel is not, in itself, a ground for annulment.<\/li>\n
  2. A clause purporting to strip an heir of their legacy for contesting the will is deemed unwritten.<\/li>\n
  3. Unworthiness targets serious conduct toward the deceased, and the application must be brought within one year of the opening of the succession or of learning of the cause.<\/li>\n
  4. To attack the will, you need a specific defect: incapacity at the time of signing, captation, or a defect of form.<\/li>\n
  5. The support claim against the estate is prescribed by six months<\/strong> from the death, and it is capped.<\/li>\n
  6. A common-law spouse outside a union parentale inherits nothing without a will: making a will remains the simplest solution.<\/li>\n<\/ol>\n

    Further reading<\/h2>\n