A recent British Columbia Supreme Court decision highlights an important issue in estate planning: what happens when a person’s intentions are clear, but the formal will-making process is incomplete at the time of death?

In Henriksen Estate (Re), the Court considered whether a draft will could be treated as effective under British Columbia’s Wills, Estates and Succession Act (WESA). The case involved mirror wills, solicitor notes, a draft prepared in one person’s name, and a later draft created only after the wife had passed away.

The result is a useful reminder that BC courts have broad powers to cure deficiencies in wills, but those powers still have limits. Even where testamentary intentions appear clear, the timing and authenticity of the document can matter.

Case Centred on Mirror Wills Still in Progress

The case involved a couple who had previously been married, divorced, and later reconciled. Although they did not remarry, the evidence before the Court indicated that they considered each other spouses. They had no children together, and the wife’s next of kin would either have been the husband, if legally treated as a spouse under WESA, or the wife’s siblings.

Toward the end of 2024, the wife suggested that the couple meet with a lawyer to prepare wills and related planning documents for their later years. In January 2025, they met with an estate planning solicitor to discuss mirror wills, powers of attorney, and representation agreements.

At that meeting, the wife did most of the talking. The solicitor’s notes showed that the couple wanted mirror wills, with each person naming the other as executor and residual beneficiary. The instructions also included contingent beneficiaries and a specific gift of the wife’s jewelry to the husband’s niece.

The Drafts Were Not Yet Finalized

After the initial meeting, the solicitor followed up by email to request further information. Draft documents were then circulated. However, because the documents were intended to be mirror documents, the solicitor first prepared a draft will in the husband’s name, along with other draft planning documents.

The email explained that one version would be finalized before the corresponding spouse’s version was created. The draft will was therefore in the husband’s name, but it included notes and provisions showing that parts of the document were intended for the wife’s own will. For example, the jewelry clause was marked as being for the wife’s will only.

There was some delay in the process. In June 2025, after another meeting, updated draft documents were sent to the couple. Again, the draft will was in the husband’s name, even though the solicitor’s evidence explained that it was part of the process of preparing mirror wills for both clients.

A Sudden Death Before Signing

Before the final signing meeting could take place, the wife died suddenly. After her passing, the funeral home asked for a copy of her will. The husband then asked the solicitor to provide a draft will based on the June draft, but mirrored in the wife’s name.

The solicitor was away at the time, and the office prepared a version identifying the wife as the will-maker and the husband as the executor and beneficiary. This post-death version reflected the structure discussed during the estate planning process.

The husband applied under section 58 of WESA for an order that the post-death draft be made fully effective, even though it did not comply with WESA’s formal will-making requirements.

Section 58 of WESA: A Flexible but Limited Power

Section 58 of WESA allows the Court to make an order giving effect to a record, document, writing, or marking that represents the testamentary intentions of a deceased person, even if the document does not meet the usual formal requirements for a valid will.

This provision is often described as a curative power. It gives BC courts flexibility where a document does not meet traditional execution requirements, such as proper signing or witnessing, but still appears to reflect the deceased’s fixed and final intentions.

The Court noted that section 58 marked an important shift away from strict compliance. Under WESA, the focus is not only on whether the formal rules were followed. The Court may also consider whether the document represents the deceased’s testamentary intentions.

Can a Post-Death Draft Be Cured?

The unusual issue in this case was that the document the husband initially relied on was created after the wife’s death. The Court accepted that the post-death draft represented the wife’s testamentary intentions. However, that did not end the analysis.

The Court considered whether a “record, document or writing” under section 58 could include a document created after death. Although the language of section 58 is broad, the Court concluded that the document must still be authentic in the relevant sense.

In the Court’s view, an authentic document must have been created by the deceased, or under the deceased’s direction, during their lifetime. A document drafted after death based on prior instructions is different. If post-death drafting were enough, purely oral intentions could effectively become the basis for a will.

Why the Court Drew the Line

The Court explained that section 58 does not allow a court to simply create a will based on what it believes the deceased wanted. Instead, the statute requires a record, document, writing, or marking that can be made effective.

That distinction mattered. If a lawyer could draft a will after death based on instructions and then ask the Court to validate it, there would be little practical difference between that and the Court writing a will after death. The Court concluded that this would go beyond the statutory framework.

As a result, the Court declined to give effect to the post-death draft under section 58. Although the document reflected the wife’s intentions, it was not the kind of authentic lifetime document that section 58 could cure.

The June Draft Offered a Different Path

The husband was not left without a remedy. The Court then considered the June draft, which had been created and delivered during the wife’s lifetime. Although it was in the husband’s name, the evidence showed that it was part of the mirror-will process for both clients.

The June draft contained indications that some provisions were intended for the wife’s will. It was created before death, sent to both clients, and apparently reviewed during the estate planning process.

The problem was not that the June draft had no connection to the wife. The problem was that it was in the wrong person’s name because of the way mirror wills were being developed.

Section 59 of WESA: Rectification of a Will

The Court then considered section 59 of WESA, which allows rectification of a will in certain circumstances. Rectification may be available where a will fails to carry out the will-maker’s intentions because of an accidental slip or omission, a misunderstanding of instructions, or a failure to carry out instructions.

The Court found that the June draft could be rectified. The issue arose because of the drafting process for mirror wills, not because the wife lacked testamentary intentions.

By substituting the wife’s name for the husband’s name, and vice versa where appropriate, the Court was able to give effect to the June draft as the wife’s will. The Court declared the rectified June draft to represent the wife’s testamentary intentions and made it fully effective as her will.

The Risks of Unfinished Estate Planning

This decision is a practical reminder that estate planning documents often move through several stages before they are signed. Notes, emails, draft clauses, and solicitor records may later become significant if a person dies before the process is complete.

The case also shows that mirror wills can create unique complications. When one draft is prepared first and the other spouse’s version is intended to follow, it may be important that the file clearly records whose intentions are being documented and how each version is to be completed.

For individuals and families, the decision underscores the importance of completing estate planning documents promptly once instructions have been settled. Delays can create uncertainty, especially where there are questions about spouses, next of kin, beneficiaries, or unfinished drafts.

Clear Records Can Make a Difference

The Court’s decision depended heavily on the surrounding evidence. The solicitor’s notes, emails, draft documents, annotations, and evidence about the couple’s instructions all helped establish the wife’s intentions.

This illustrates why clear record-keeping can be important in estate planning. Where a will is not finalized before death, the available records may become central to determining whether a draft document can be given effect.

For beneficiaries, executors, and family members, disputes about unfinished wills can be complex. The question is often not simply what the deceased wanted. It may also be whether those wishes were recorded in a way that WESA permits the Court to recognize.

Contact CM Lawyers for Comprehensive Wills and Estates Services in Vernon, Salmon Arm, Enderby and Abbotsford

For assistance with wills, estate planning, probate, estate administration, WESA applications, will variation claims, rectification applications, or disputes involving draft wills and testamentary intentions, contact our CM Lawyers. Our skilled wills and estates lawyers provide clear guidance on estate planning documents, executor responsibilities, beneficiary disputes, and estate litigation matters.

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