Conditions for obtaining a certificate of historical search for a will or protection mandate for a legal proceeding for annulment.
In Quebec, professional secrecy is a fundamental principle of justice, especially when it comes to legal advice. Professional secrecy covers both the content and the very existence of a will or protection mandate. As a general rule, it is the testator or mandator, who is the notary’s client, who is entitled to professional secrecy, and only the testator or mandator can waive it.
In the event of the testator’s death or the mandator’s incapacity, the power to lift the professional secrecy and order the Chambre des notaires to issue a historical search lies exclusively with the Superior Court (or higher court), and it is a proceeding that must be limited to exceptional cases where it is required in the interest of justice. The Chambre des notaires is of the opinion that, in order to protect the professional secrecy, it does not have the authority to issue a historical search for wills or protection mandates without a specific order from the Superior Court (or higher court).
This order is required even if the mandator or testator has been declared incapacitated before signing their will or protection mandate.
Note that a historical search of a will or protection mandate is not necessary to find out the deed signed prior to the annulled will or mandate. A simple will or protection mandate search is adequate.
Therefore, the Registrar of the Chambre des notaires du Québec is authorized to issue a certificate of historical search for a will or protection mandate when all of the following conditions have been met:
1. An application for order to issue a historical search to the Chambre des notaires du Québec and for communication of the revoked deed to the holder of such deed must be made to a judge of the Superior Court (excluding clerks and special clerks), pursuant to articles 484 and 485 of the Code of Civil Procedure, in which the liquidator or mandator must be added as a party.
2. Based on the criteria established by caselaw,[1] the application must allege:
- That the applicant has the necessary judicial interest to dispute the validity of the deed.
- That there is serious doubt as to the validity of the last will or protection mandate that would put into question the presumption of capacity of the testator or mandator or raise a situation of undue influence. The interest of the deceased or incapacitated person must therefore be taken into consideration.
- Disclosure is required whenever the validity of the deed is in debate and to confirm the true intentions of the testator or mandator.
3. Suggestions for drafting the application and a sample judgment for historical searches are available here (in French).
4. The order must be limited to deeds that are only required for disputing the validity of the deed and for that purpose, the application must specify the period to be covered by the historical search.
5. The Chambre des notaires must be notified of the order that was made.
6. After obtaining the order and before the time limit set out in this order expires, the applicant will need to send the Registrar the required form along with supporting documents, the payment and a copy of the order.
7. Unless the Chambre des notaires intends to appeal the order, the historical search will be issued by the Registrar within the time limits set out in the order upon payment of the fees.
8. The Registrar will state, on the certificate of historical search for the will or protection mandate that they will be issuing, the period it covers and the order under which it was issued. Please note that the Registrar cannot issue a certificate of historical search without a court order.
Note that no certificate of historical search will be produced if the order does not come from the Superior Court or another higher court.[2]
[1] Succession Chékir, 2022 QCCS 4631 (CanLII) and Succession Plante 2022 QCCA 492 (CanLII)
[2] Lebeau c. Fortin, 2023 QCCS 4557 (CanLII)