The will validation power, first introduced to Canada over 40 years ago with the enactment of section 23 of Manitoba’s Wills Act, is still a relatively recent development compared to the rest of the law governing wills. Across the country, the courts continue to confront novel questions regarding the scope and application of the will validation power. Two such issues were recently considered by the BC Supreme Court in Henriksen Estate (Re), 2026 BCSC 1058:
- whether a draft will created after the deceased had passed away, based on a draft mirror will approved by the deceased during their lifetime, could be validated; and
- alternatively, whether a draft mirror will prepared in the name of the deceased’s surviving spouse, but intended for both the deceased and their spouse, could be rectified to name the deceased and validated.
The Superior Court of Justice has not been faced with these questions yet under section 21.1 of the Succession Law Reform Act, making this decision noteworthy for wills and estates practitioners in both Ontario and British Columbia.
Background
In Henriksen, the deceased and her spouse consulted with a lawyer to prepare mirror wills. After the initial consultation, the lawyer prepared a draft mirror will, but only in the name of the deceased’s spouse, explaining that a will in the deceased’s name would not be created until the draft will had been finalized. However, the draft did contain annotations identifying ways in which the deceased’s will would differ from her spouse’s.
After another client meeting, the lawyer revised the draft will and emailed it to the deceased and her spouse to review, and also invited them to schedule a meeting for executing the wills. Before that occurred, however, the deceased passed away unexpectedly.
The funeral home asked for a copy of the deceased’s will, so the surviving spouse asked the law firm to prepare a draft will for her, consistent with his draft mirror will. After he received the draft will for the deceased, he applied to the BC Supreme Court for an order to validate it as her will.
Documents Created After Death Cannot Be Validated
The application to validate the draft will was dismissed since the document did not exist before the deceased passed away, and therefore was not “authentic.”
Like section 21.1 of the SLRA, section 58 of British Columbia’s Wills, Estates and Succession Act permits the court to validate a record, document or writing as a will, notwithstanding non-compliance with the formal execution requirements, so long as it is authentic and represents the deceased’s deliberate or fixed and final testamentary intentions.
The central issue in this case was whether a record, document or writing submitted for validation under section 58 could include a document created after the testator’s death. There was no question that the post-death draft of the will accurately reflected the deceased’s testamentary intentions.
To answer this novel question, Justice Morley engaged in statutory interpretation of section 58, bearing in mind the context and purpose of the will validation power, plus the wording of the legislation and the public policy goals underlying its enactment. While the wording of section 58 does not expressly state that a document must originate during the deceased’s lifetime, the court ultimately concluded that a post-death draft could not be validated. In reaching this conclusion, Justice Morley noted that the goals underlying the enactment of section 58 include promoting authenticity and guarding against fraud, and that the most fundamental formality of making a will – that it must be in writing – had been incorporated into section 58:
“… notice that s. 58 does not permit a court simply to give effect to what it finds to be the fixed and final testamentary intentions of the deceased. Rather, the court must find a record, document, writing or marking that is to be given effect. If all that mattered was intention, then this would be unnecessary. The court could simply draft the will that best represents the best evidence of what the testator wanted. Section 58 does not allow that.”
Accordingly, for a document to be validated as the deceased’s will, the court held that it had to originate during the deceased’s lifetime. Permitting a will to be created posthumously based on the deceased’s instructions would effectively allow purely oral testamentary intentions to form the basis of a testamentary disposition, contrary to section 58’s requirement that a record, document, or writing must be capable of validation.
The Mirror Will Could Be Rectified and Validated
Although the court refused to validate the post-death draft of the deceased’s will, Justice Morley held that the draft mirror will, created while the deceased was alive, could be rectified under section 59 to name the deceased as the testator and then validated. This relief was available because the draft will failed to carry out the will-maker’s instructions, as it named the wrong testator due to a “firm policy [applicable] in the context of mirror wills still in development.” Through rectification, the draft mirror will could stand as the deceased’s will “without stretching the statutory framework of s. 58 beyond its breaking point.”
Practical Takeaways for Ontario Practitioners
Justice Morley’s decision offers a number of helpful insights for wills and estates practitioners:
- If a solicitor drafts a client’s will after they pass away, it likely cannot be validated, even where there is compelling evidence that it accurately reflects the deceased’s testamentary intentions.
- To satisfy the authenticity requirement of will validation, the record, document or writing must have been created during the deceased’s lifetime. In other words, the will validation power cannot be used to dispense with the requirement that a will be reduced to writing.
While the BC Supreme Court was able to rely on section 59 of WESA to rectify the draft will in Henriksen, it is not clear whether this scenario would be handled the same way in other provinces, like Ontario, that do not have a statutory provision governing rectification. There is no reported case law addressing whether a will that has not been properly executed may be rectified under the common law.
In Robinson Estate v Robinson, 2010 CarswellOnt 4576 (SCJ), Justice Belobaba affirmed that rectification is available to correct drafting errors where “the testator has reviewed and approved the wording” of a will. However, it is unclear whether this means that rectification is available where a draft will with a drafting error has been approved, but not executed.
Given this uncertainty, when preparing mirror wills, practitioners may want to create a separate draft will for each client at the outset. Drafting the mirror wills this way ought to enable the estate of either client to seek validation of the client’s draft will, should they die before the wills are executed.
Thank you for reading, and have a wonderful day!
Suzana.