Henriksen Estate

 

The Wills, Estates and Succession Act allows the court to give effect to a document or other record as a will even though the will does not comply with the formal signing and witnessing requirements for making a valid will in British Columbia. Section 58 has been used to non-compliant documents if the court finds that the document is authentic and represents a deliberate or fixed final intention of a deceased person.

But what if the document is created after the death of that person?

This is what occurred in Henriksen Estate, 2026 BCSC 1058. Krista Henriksen and Awad Mohamed met with a lawyer to make wills, powers of attorney and representation agreements. Their instructions to the lawyer were that they wanted to make wills that were like each other, or mirror wills, except for a gift of jewelry in Ms. Henriksen’s will. Each was going to name the other as executor and leave the residue of their estates to each other, with the same contingent beneficiaries named on the death of the last of them to die.

The lawyer initially drafted Mr. Mohamed’s will. Similarly, the lawyer drafted a power of attorney and representation agreement in Ms. Henriksen’s name. She sent the drafts to them by email, explaining that because they would be mirror documents, she would finalize the draft for one person before creating the final version of the other.

They asked for some revisions, and a revised draft of Mr. Mohamed’s will was completed in June 2025, and was sent to them. Before a meeting was scheduled to sign the documents, Ms. Henriksen died suddenly on July 4, 2025, without her will having been drafted.

The lawyer’s office drafted the will after she passed, and Mr. Mohamed asked the court to give effect to the will.

Justice Morley reviewed the jurisprudence, noting that a broad purpose of s. 58 was to be “more flexible in realizing testator intent, although it also includes the sometimes competing purposes of ensuring authenticity and guarding against fraud. “

However, Justice Morley held that the flexibility of purpose did not extend to giving effect to a document that did not exist before death.

[40]         But 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.

[41]         This reflects a theme that is also present in the BCLI Report [British Columbia Law Institute: Wills, Estates and Succession: A Modern Legal Framework], namely that the traditional formalities of will making fulfilled important functions, even though they sometimes created injustices. The purpose of the legislation was not just to throw away the vestiges of the past, but to do so in a way that maintained the benefits of the older system.

[42]         The most fundamental formality of all was — and remains — that a will must be in writing or at least recorded. This dates back to the very introduction of wills into the English legal system. Even if a court could be morally certain of what the deceased’s intentions were, if they were merely orally expressed, they could not be given effect by a court. That principle was not changed by s. 58, since it does not permit a court to author a will but just to give effect to a record, document or writing.

[43]         In my view, there is no real difference between a court creating a will after death from what it knows of the deceased’s testamentary intentions and a solicitor doing so and then asking for the court to bless the result. If a solicitor could simply, after death, draft a will based on instructions, then all that would matter would be the deceased’s intentions. As a result, in my view, a draft created after death out of the oral instructions of the deceased would not, in the relevant sense, be a record, document, writing or marking.

But this was not the end of the analysis.

Section 59(1) of the Wills, Estates and Succession Act provides:

On application for rectification of a will, the court, sitting as a court of construction or as a court of probate, may order that the will be rectified if the court determines that the will fails to carry out the will-maker's intentions because of

(a)        an error arising from an accidental slip or omission,

(b)        a misunderstanding of the will-maker's instructions, or

(c)        a failure to carry out the will-maker's instructions.

Justice Morley applied s. 59 to rectify the will in Mr. Mohamed’s name, which was drafted before Ms. Henriksen’s death, so that it was treated as Ms. Henriksen’s will and the appointment of Ms. Henriksen as executor and beneficiary was rectified so Mr. Mohamed was the executor and beneficiary.

Justice Morley wrote:

[52]        “Failure to carry out the will-maker’s instructions” need not mean a culpable failure. In my view, this is a relatively easy case for rectification under s. 59(1)(c). The June Draft failed to carry out the will-maker’s intentions because of firm policy in the context of mirror wills still in development. This fits within the meaning of s. 59(1)(c).