Successions outside Quebec

INTRODUCTION

Private international law refers to the body of rules which regulates the adjudication of private disputes which involves a significant foreign element. However, the use of the word “international” is misleading, as the Civil Code of Quebec (hereinafter the “CCQ“) treats the remaining Canadian provinces and territories as distinct entities which are considered distinct “States” in accordance with Art. 3077 of the CCQ.

The notion of a “foreign State” does not correspond to its geographical equivalent. According to Art. 3077 CCQ, where a State comprises several territorial units having different legislative jurisdictions, each territorial unit is regarded as a State.

The notion of “State” found under Art. 3077 CCQ indicates that for the purpose of Quebec’s private international law, a Canadian province other than Quebec, e.g. Ontario, will be treated the same as a foreign country, e.g. Spain.

Therefore, the following article pertains to any succession situated outside Quebec, irrespective of whether it opened in another province, or country altogether.

The international nature of a succession can take root from a single foreign element, in other words, a link between the deceased and a different State than the one of his domicile such as:

  1. A will composed in another State;
  2. Where the deceased was domiciled in Quebec but had property situated in another State; and
  3. Where the deceased was not domiciled in Quebec, but had property situated there.

International successions, whether interprovincial or international, are governed by Book X of the CCQ,Art. 3076 to 3168, which establishes the rules regarding the law applicable to the merits, the international competence of a Quebec authority and the recognition and enforcement of foreign judgements.

Conflict of laws or choice of law refers to the law applicable to a specific type of legal dispute according to a defined connection with the domestic law of Quebec or of another State.

The jurisdictional competence of a State’s authority refers to the competence of courts, administrative tribunals, and other authorities such as notaries. In other words, these rules refer to the adjudicative jurisdiction of a court and/or other authorities.

It must be noted that Quebec’s private international law does not establish a direct link between the jurisdictional competence of Quebec’s authorities and the legislative competence with respect to the applicable law to the dispute. Each of these concepts have their own distinct set of rules and connecting factors found within book X of the CCQ.

The recognition and enforcement of judgements refer to situations where a decision rendered by a foreign court needs to be recognized and enforced through a Quebec court in order to be effective in Quebec, or alternatively, the recognition and enforcement of a Quebec judgement but abroad for it to have effect in that jurisdiction.

Quebec’s law on successions is characterized by its adherence to the concept of unity of patrimony, whereby the entire patrimony of the succession is governed under one set of laws.

However, Quebec’s rules on private international law breaks the unity of successions and adopts the principle of scission, where movables are subjected to the laws of succession of the last domicile of the deceased, and immovables are subjected to the laws of succession of the place they are situated.

Consequently, ab intestate successions and testamentary successions with no explicit designation of a choice of law could be subject to distinct laws.

Let us explain this with the use of an example:

Scenario 1:

Jane passed away last month in Montreal, the place of her last domicile.

Jane had a house and a car in Montreal, in addition to a cottage and another car in California.

Both of Jane’s vehicles and her house in Montreal will be governed by Quebec law, while the cottage in California will be governed by the laws of succession of California.

In practice, this means that a Quebec court may have to apply the law of another country to adjudicate matters relating to an international succession. In this scenario, a Quebec court may have to apply the law of California if proceedings are instituted in Quebec.

However, the principle of scission may be set aside as a result of the adoption of the professio juris principle in Quebec’s law whereby a testator may elect a single law to regulate the whole of his succession. This option avoids unnecessary costs and waste of time inherent to the liquidation of an international succession subjected to multiple sets of laws.

Scenario 2

Jane passed away last month in Montreal, the place of her last domicile.

Jane had a house and a car in Montreal, in addition to a cottage and another car in California.

In her will, Jane decided to choose to govern her entire succession under the law of Quebec. Therefore, all of her succession, including her cottage and her car in California, will be governed under Quebec’s law.

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The above noted text should not be construed as providing legal advice or a statement of your claim. The process highlighted above are merely parameters and barometers and do not constitute any warranties and guaranties with regards to your file at hand. We strongly recommend that you seek legal advice with a licensed attorney from the Barreau du Quebec or a notary at the Chambre des Notaires. Each case must be seen and analysed on its merits as the legal process may be complex and cumbersome.