Can an e-mail serve as a will?


Can an e-mail serve as a will? The advent and democratization of the use of technological tools brings its share of legal questions. In the Bitton case1, the Superior Court considered the validity of an e-mail as a means of expressing the last wishes of a deceased person.

The Law provides for only three methods of making a valid will. These methods are set out in article 712 of the Civil Code of Québec: “A person may only test by a notarial will, a holograph will or a will made before witnesses”2. Each of these methods is subject to a formalism which, if not observed, leads to the nullity of the will3. However, unlike the Civil Code of Lower Canada, the new Civil Code of Québec, in its article 714, somewhat alleviates this formalism for holograph wills and wills made before witnesses:

A holograph will or a will made in the presence of witnesses that does not fully meet the requirements of that form is valid nevertheless if it meets the essential requirements thereof and if it unquestionably and unequivocally contains the last wishes of the deceased.4

The notarial will requires to be received by a notary, assisted by a witness5. A holographic will requires that it be signed by the testator in a way other than by technical means, i.e. by his or her own hand6. These two methods clearly do not allow an email containing the last wishes of the deceased to be considered a valid will. It was therefore the method of the will before witnesses that was debated.

The formalities for a will made before a witness are set out in article 727 of the Civil Code of Québec:

 A will made in the presence of witnesses is written by the testator or by a third person.

The testator then declares in the presence of two witnesses of full age that the document he is presenting is his will. He need not divulge its contents. He signs it at the end or, if he has already signed it, acknowledges his signature; he may also cause a third person to sign it for him in his presence and according to his instructions.

The witnesses sign the will forthwith in the presence of the testator7.


In 1989, following a divorce, Mr. Bitton made a will before witnesses providing that all of his property would devolve to his three children. This will respected all the formalities required by the Civil Code of Lower Canada at the time. Mr. Bitton later remarried without ever changing his will. Although he had a draft will prepared by a notary, which he never signed.

In March 2020, Mr. Bitton contracted Covid-19 and was hospitalized. Fearing that he would not survive, he sent an email to his notary indicating his last wishes, including that of including his second wife as an heir. In his e-mail to the notary, he indicates that this is his will and adds that if he cannot sign the draft will that the notary will prepare, “this is my signature”.

The notary then telephoned Mr. Bitton, and he states that Mr. Bitton was lucid and verbally confirmed all of the instructions contained in the e-mail. The notary wanted to prepare the will and have Mr. Bitton sign it at the hospital, but was unable to do so because of Covid-19 restrictions on hospital visits.

The notary then prepared a new draft of the will to make it conform to Mr. Bitton’s wishes and sent it to him by e-mail. However, Mr. Bitton never replied to the draft will because he was placed in an induced coma and never woke up. A dispute thus arose between Mr. Bitton’s wife and children regarding the succession to determine the legal value of the last wishes expressed by the deceased in his e-mail.

Claim of the parties

Mr. Bitton’s children argue that the email to the notary is not a valid will because it does not follow the formalities set out in the Law.

The wife of the deceased, for her part, maintains that the e-mail represents his true last wishes and that even if it does not meet all the required formalities, it essentially satisfies them. It contains the last wishes of the deceased in a certain and unequivocal manner and thus meets the criteria of article 714 of the Civil Code of Quebec mentioned above. She added that the notary was a witness for the deceased, as he had confirmed the content of his last wishes by telephone. Moreover, the presence of a second witness has already been judged by the courts not to be an essential formality of a will made before witnesses8.

Court analysis

The Court first emphasized the objectives of testamentary formalism. It ensures that the will contains the last wishes of the deceased and that the deceased was not unduly influenced in the preparation and finalization of the will. It also aims to make the testator understand that he is performing an important act to which he must pay particular attention. It also makes it possible to limit the possibilities of fraud and modification by third parties, in addition to facilitating the proof of the legal act.

Because of these objectives, it is possible that in certain situations this formalism prevents people from giving testamentary value to their last wishes. However, this price to pay is offset by the advantages of testamentary formalism, which include the facilitation of proof, legal security and peace of mind for the families concerned.

Contrary to the claims of the deceased’s wife, the judge considered that the e-mail will did not essentially satisfy the formalities, but rather that it met virtually none of the formalities required, apart from the fact that it was a writing.

First, he noted that a witnessed will must be made in the presence of the witnesses and that the witnesses must sign the instrument at the same time as the testator and in his presence. According to the judge, a will made in the presence of witnesses “is fundamentally incompatible with the idea that the witnesses could be in a different place than the testator or that they could become witnesses” within the meaning of article 727 of the Civil Code of Québec by receiving the e-mail the next day. Wills before witnesses can only be made “in person”.

Next, he points out that the mention “this is my signature” in an e-mail is not the same as affixing one’s signature to a document. According to article 2827 of the Civil Code of Québec, a signature “consists in the affixing by a person to an act of his name or of a mark which is personal to him and which he uses in a common manner, to manifest his consent”. In this case, it was neither the testator’s name, nor a personal mark that he frequently uses to manifest his consent, nor an electronic signature that links the document to a person. Moreover, even if he had written his name, the mere typing of his name at the bottom of a technological document does not constitute a signature9.

It turns out that it is not possible to make a valid will through a simple email exchange.

Written with the collaboration of Mr. Luc Robitaille, law student.

1 Bitton c. Bitton, 2021 QCCS 4649.
An application for permission to appeal was denied in this case.
2 Code civil du Québec, R.L.R.Q., CCQ-1991, art. 712.
3 Id., art. 713.
4 Id., art. 714.
5 Id., art. 716.
6 Id., art. 726.
7 Id., art. 727.
8 Paradis c. Jones, 2008 QCCA 1105; Pruneau c. Grenier, 2021 QCCS 796; Therrien (Succession de) c. Lallemand Therrien, 2010 QCCS 321.
9 Tabet c. Equityfeed Corporation, 2017 QCCS 3303.