What happens when a person dies before their will is signed, but their lawyer has already been given clear instructions about what that will was supposed to say? Can a court step in after death and give effect to the deceased’s wishes?
The recent decision in Henriksen Estate (Re), 2026 BCSC 1058 raises this unusual question and offers an interesting point of comparison for Ontario practitioners.
A WILL THAT WAS NEVER QUITE FINISHED
Krista Henriksen and Awad Hussein Mohamed got married in 1992, divorced in 2003, and later reconciled. In January 2025, they met with an estate-planning solicitor to prepare mirror wills. Their intention was straightforward: each spouse would leave their respective estates to the other, with contingent beneficiaries if both had already died at the material time.
Following her usual practice, the solicitor drafted one will first, intending to use it as the basis for the mirror will. The initial draft was prepared in Mr. Mohamed’s name. After making revisions, the solicitor sent the updated draft to the couple on June 25, 2025, and they planned to meet again to sign both wills. Unfortunately, Ms. Henriksen died unexpectedly on July 4, 2025, before the meeting could take place and before either will had been executed.
After her death, Mr. Mohamed asked the solicitor’s office to prepare the corresponding will in Ms. Henriksen’s name. Upon receiving the resulting document, Mr. Mohamed asked the Court to recognize it as Ms. Henriksen’s will.
THE COURT DRAWS A LINE AT CREATING A WILL AFTER DEATH
Section 58 of British Columbia’s Wills, Estates and Succession Act (“WESA”) gives courts broad authority to cure deficiencies in a record, document or writing that represents a deceased person’s testamentary intentions. In this case, however, the Court nevertheless concluded that s. 58 could not be used to validate a post-death document. This is because, according to Justice Morely, A document prepared by a solicitor after the testator’s death, even where it faithfully reflects the testator’s instructions, cannot be an authentic testamentary record in the required sense. In his reasoning, Justice Morely highlighted that the concept of “authenticity” is central to the statutory scheme. Otherwise, s. 58 would effectively permit the court or a solicitor to create a will for someone after that person had died.
THE EARLIER DRAFT PROVIDED ANOTHER ROUTE
The Court turned to s. 59 of WESA, which permits the rectification of a will where, among other things, the will fails to carry out the will-maker’s instructions.
The June draft had been prepared before Ms. Henriksen’s death and had been sent to her. The problem was that because it was the first of the intended mirror Wills, it remained in Mr. Mohamed’s name rather than hers.
The Court found that the draft failed to carry out Ms. Henriksen’s instructions and ordered that it be rectified so that it operated as her will. In other words, the Court could not validate the document created after her death, but it could rectify the pre-death draft to give effect to the intentions she had expressed during her lifetime.
WHAT WOULD HAPPEN IN ONTARIO?
This is where Henriksen becomes particularly interesting for Ontario practitioners.
Ontario’s s. 21.1 of the Succession Law Reform Act (“SLRA”) also gives the Superior Court discretion to validate a document or writing that was not properly executed or made, where it sets out the testamentary intentions of the deceased. The provision, however, does not expressly contain the same language about authenticity found in the BC jurisprudence.
Ontario courts have already used s. 21.1 to validate unsigned draft wills in appropriate circumstances. At the same time, the cases emphasize that the document must reflect the deceased’s deliberate or fixed and final testamentary intentions. For example, in Smith v. Bechtel, 2026 ONSC 975, an unsigned draft prepared shortly before the deceased’s death was not validated because there was no evidence that he had reviewed or approved the draft before his unexpected death.
Henriksen therefore presents an intriguing question for Ontario: would s. 21.1 permit a court to give effect to a document prepared after death where the deceased had already provided clear testamentary intentions, or would the post-death creation of the document present the same fundamental obstacle identified by the BC Court?
Ontario has no decision to date that easily answers that question. For now, Henriksen provides a useful reminder that while courts have increasingly flexible powers to give effect to testamentary intentions, those powers still have limits. It also highlights a practical lesson for estate planners: when preparing mirror wills, completing and executing both wills can be highly significant if one client dies unexpectedly before the signing meeting.
