LOI APPLICABLE

Quebec’s succession law does not make a distinction between movable and immovable property with respect to the liquidation of a succession.

However, Quebec’s private international law adopted the principle of scission as per Art. 3098 CCQ, whereby the succession of immovables is governed by the law of their location, and the succession of movables is governed by the law of the last domicile of the deceased. This applies irrespective of whether the succession is ab intestate or testamentary in nature.

Consequently, an ab intestate succession or a testamentary succession without an explicit choice of law will be divided accordingly:

  1. A mass of property composed of all the movable property of the deceased; and
  2. As many masses of immovables as there are immovables in distinct States.

This means that a Quebec court may have to apply the law of another province or country in order to adjudicate a legal matter.

The characterization of property as movable or immovable will be determined by the law of the location which they are situated.

Scenario 1:

John was last domiciled in Quebec before passing away. His succession contained, amongst other things, immovables in Florida, Spain, and Quebec.

According to Art. 3098CCQ, each immovable will be governed by the law of their situation. Meaning that the immovable situated in Florida will be governed by the law of succession of Florida, the immovable situated in Spain will be governed by Spanish law, and the rest will be governed by the law of succession of Quebec.

One of his heirs, Jane, who is also domiciled in Quebec, wishes to contest the partition of the succession in front of a Quebec court.

The Quebec authority will therefore have to apply the law of Spain and Florida with respect to the partition of the immovables situated in Spain and Florida.

Quebec’s private international law also adopted the concept of professio juris as per Art. 3098 al. 2 CCQ, thus permitting a testator to choose a single law to govern the entire succession, so long as the law chosen is the one of his domicile or nationality at the moment of death, or at the time the will was redacted. The choice of law must be explicit in the will and said choice of law will be subject to certain restrictions such as the absence of a significant connection with the chosen law in addition to the application of mandatory rules protecting the immediate family of the deceased.

Scenario 2:

John was last domiciled in Quebec, and had movables and immovables situated in Quebec, Ontario, Florida, and France.

In order to avoid having four sets of laws apply to his immovables, John wrote in his will that he wished to have his entire Succession governed by the law of Quebec.

The liquidator to John succession will therefore only have to worry about Quebec’s law in liquidating John’s succession.

The law of the succession will determine the successors and their rights, which includes:[1]

  1. Heirship (Quality necessary for a person to be called to an estate i.e. the familial link necessary for someone to be called to the succession);
  2. The determination of their respective shares;
  3. The rights of the succession having their source in the passing of the deceased, including partial payments and compensation on the succession ordered by a judicial authority;
  4. The possibility of a hereditary reserve and its effects;
  5. The available quota;
  6. Partition;
  7. Modes of transmission of property;
  8. The intrinsic (essential) validity of the will;
  9. Charges and conditions that a testator may impose on the heirs and legatees;
  10. Causes of revocation and nullity of legacies and their effects;
  11. The causes of revocation and lapses of most incidents of partition as well as the relationship and the redaction of gifts;
  12. The liquidation of the succession;
  13. The liquidation of debts including:
    1. The determination of the persons responsible for the payment of the debts;
    2. The scope of their responsibilities;
    3. The order of payment;
    4. The reduction of particular legacies in case of insolvency of the succession; and
    5. Thee contribution to the debts and the mass of property from which creditors can be paid.

As to the formalities of a will, few difficulties arise in practice from the point of view of Quebec’s law given the rule found under Art. 3109 CCQ whereby the form of a juridical act, such as a will, is governed by the law of the place where it was entered into. However, a testament will nevertheless be valid if it is made in the form prescribed by the law applicable to the content of the will, by the law where the property which is the subject of the will is situated at the time the will was composed.

The probate of a will does not have to occur in multiple jurisdictions, and it is neither necessary to request judicial recognition of the probate judgement rendered by another court, unless there are disagreements amongst the heirs, creditor’s intervention or if other doubts as to a possible contestation, to which the homologation judgement would not be recognized here.[2]

It will be sufficient to deposit the probate judgement in the minutes of the Quebec notary in accordance to Art. 2822 CCQin order to have the will validated in Quebec.[3]

It must also be noted that it is possible to have two co-existing wills in different jurisdictions, provided that they both acknowledge the existence of the other and aren’t conflicting

Mandatory rules

Certain states have mandatory rules designed to protect the immediate family of the deceased. These mandatory rules can take the form of a hereditary reserve, obligations to share a certain percentage of the succession, either through actual property or usufruct. In an international succession, mandatory rules will only apply insofar as to the mass of property it regulates.

Scenario 3:

John passed away last month in Montreal, the place of his last domicile. His succession contains movables and immovables in the province of Quebec evaluated at $500,00.00 in addition to an immovable situated in Spain worth $200,000.00. John has a son and a wife, but in his will he decides to leave everything to his wife.

Under Spanish law in certain regions, John’s son is entitled to a hereditary reserve. Therefore, John’s son is claiming a certain percentage of the entirety of the estate worth $700,000.00.

However, John’s son is only entitled to the hereditary reserve with respect to the value of the immovable situated in Spain. Otherwise, we would be applying Spanish law to immovables situated in Quebec.

The succession law of Quebec does not provide for such mandatory rules or protection. However, one could not seek to negate the effect of a mandatory rule through a choice of law clause in favor of Quebec’s law of succession as it would deprive protection to individuals to which they would otherwise be entitled to absent this disposition.

Scenario 4:

John passed away last month in Montreal, the place of his last domicile. His succession contains movables and immovables situated in Spain, Florida, and Quebec. John leaves behind two children and his wife. However, in his will, he decides to leave everything to his wife.

In order to avoid the multiplicity of applicable law, John decides to elect the law of Quebec as the law regulating the entirety of his succession in order to avoid the application of the hereditary reserve found under Spanish law.

However, given the mandatory nature of the hereditary reserve, his choice of law clause in the will favoring Quebec’s law of succession will be of no effect with respect to the deprivation of the hereditary reserve to which his children are entitled to vis-à-vis the property situated in Spain.

It must be remembered that not all jurisdiction allows for the possibility of a choice of law clause in a will.

Not only will the validity of the choice of law clause depend on its effects, meaning whether or not it deprives someone entitled to protection afforded by a mandatory rule, but the choice of law clause may not be respected in the jurisdiction where the goods are situated.[4]

It is therefore of paramount importance to ascertain the effects of the choice of law clause, and to verify whether the law of the place which the goods are situated permit for a foreign law to regulate the succession of said goods situated abroad.

Once the applicable law has been identified, the liquidator will proceed to the settling of the estate while respecting each applicable law.

[1] Jeffrey A. Talpis, “Cauchemars rencontrés dans la liquidation d’une succession internationale” (2005) Cours de perfectionnement du notariat, Chambres des notaires du quebec, EYB2005CPN10 at p.7.

[2] Ibid, at p. 11.

[3] Ibid.

[4] Jeffrey A. Talpis, “Quelques développements récents en droit des successions internationales suscitant certains débats ou soulevant quelques incertitudes” (2012) Développements récents en droit des successions et fiducies, Service de la formation continue du Barreau du Québec EYB2012DEV1885 at p. 6.

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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.