Joint wills and mutual wills are both valid legal instruments in Canada, but rarely arise in modern practice today. As a result, courts are seldom asked to consider their legal effect.
Nevertheless, joint wills and mutual wills still come up from time to time. For example, last year the British Columbia Supreme Court was asked to determine whether a joint will from Germany was revoked after one of the testators made a new will in BC: see Siebert Estate (Re), 2025 BCSC 617. As noted in our previous blog post on the case,the court ultimately concluded that the joint will had been revoked. Earlier this month, however, in Aulinger v Oda,2026 BCCA 13, the British Columbia Court of Appeal overturned the judge’s decision, confirming that a joint will created by two people is actually two wills – not one – and that the creation of a new will by one of the testators cannot revoke both wills.
Background
In 1995, a husband and wife executed a valid holograph joint will in Germany that consisted of a single sentence:
“In the case of our death, we, Daniela and Johannes Siebert, name Mr. Martin Steger and Ms. Gertrud Steger as universal heirs of our entire estate.”
Then, in 2019, the wife executed a new will that revoked all prior wills and left her entire estate to her husband. At the time, she was ill with cancer, and died less than a month later. The husband died later, in 2022.
A dispute as to the disposition of the husband’s estate erupted between the beneficiaries named in the 1995 joint will and the husband’s new common law partner. The court was ultimately asked to determine whether the 1995 joint will had been revoked by the wife’s 2019 will. Justice Elwood concluded that the husband died intestate on the basis that the joint will had been revoked.
Understanding the Difference Between Joint Wills and Mutual Wills
In overturning the Supreme Court’s decision, a key misunderstanding noted by the Court of Appeal was an underlying assumption that joint wills and mutual wills are synonymous. The Court of Appeal made it clear that this is not the case.
Joint wills and mutual wills are distinct legal instruments. Mutual wills are used by two or more testators to confer reciprocal benefits, and may be contained in separate documents, or in a single joint document. A potentially defining feature of mutual wills is the parties’ agreement not to revoke the reciprocal dispositions.
While mutual wills may be contained in a joint will, it is not the case that every joint will is a mutual will – the Court of Appeal affirmed that joint wills “need not necessarily confer reciprocal benefits.”
The Court of Appeal also explained that a joint will is not a single will. Rather, in a joint will, each testator’s will constitutes a separate instrument contained within the same document. A joint will operates on the death of each testator as that individual’s will, and disposes of their own separate property. Accordingly, the Court of Appeal pointed out that “[t]he revocation of a joint will by the testator who dies first is not a revocation of the joint will as it pertains to the surviving testator – it is only a revocation of the revoking testator’s will.”
Interpreting the Joint Will
In this case, the joint will did not address what would occur if one spouse died before the other – it simply referred to the disposition of “our entire estate” in the event of “our death.” As a result, one of the first issues addressed by the court was how the will should be interpreted, specifically the circumstances under which the will was intended to be operative.
The husband’s new common law partner suggested that the joint will was only meant to apply if both the husband and wife died simultaneously. The Court of Appeal disagreed, holding that the wording of the will suggested an assumption that, if one spouse died before the other, the property of the deceased would simply pass to the survivor in the interim, with the estate passing to the beneficiaries after both husband and wife had died. The Court of Appeal also noted that this interpretation was supported by the principle that ambiguities in a will should be resolved in a manner that avoids an intestacy.
The trial judge, however, reached a different conclusion, interpreting the will as being made in contemplation of the spouses dying simultaneously, or the first spouse to die doing so without having revoked their participation in the joint bequest. The difficulty with this interpretation, as noted by the Court of Appeal, is that it implicitly relies on an incorrect legal proposition – that “the revocation of a joint will by one maker revokes it for both.”
The Court of Appeal reiterated:
“… a joint will is in law two wills, either of which may be revoked without any effect on the other (except in the special case where the two wills are mutual wills with an agreement not to revoke and one of them has died).”
Moreover, the Court of Appeal observed that, in this case, there was no evidence indicating that the husband and wife had even turned their minds to revocation, given that the will consisted of a single sentence. There was also no indication that they had made any agreement as to whether or not either of them could revoke the will.
The court ultimately concluded that the Supreme Court’s interpretation of the joint will flowed from a misunderstanding of the legal nature of joint wills, and a failure to approach the interpretive issue as a search for testamentary intent.
The Result
Writing for the panel, Justice Gomery confirmed that since the husband had not revoked the 1995 joint will, it remained valid and came into effect upon his death. Recognizing that only the husband could cause his will to be revoked, and that he did not participate in the making of the 2019 will, the Court affirmed that only the wife’s will had been revoked.
While joint wills and mutual wills may not arise in practice all that often, the Court of Appeal’s decision in Aulinger v Oda is a useful reminder that:
- joint wills and mutual wills are not necessarily synonymous; and
- if one testator to a joint will creates a new will, this action will only revoke their will, and will not revoke the will of any other testator who executed the joint will.
Thank you for reading, and have a great day!
Ian.