A joint will, is a single legal document created by two or more people, outlining their collective intentions regarding the distribution of their property upon death. Although joint wills have fallen out of fashion over the last century, they still pop up, especially when dealing with holograph or foreign made wills. In modern day, more often than not, we see mutual wills, rather than joint wills. A mutual will is a will made by two or more individuals enter into a binding agreement that their wills will not be revoked or altered without the consent of the other, and that their property will be disposed of according to an agreed scheme, typically conferring reciprocal benefits and ultimately benefiting specified third parties on the death of the survivor. I will note here that a will can be both a joint will and mutual will, though that need not necessarily be the case.
Upon the creation of a joint will, both parties effectively agree to be legally bound to not change their will without the other party’s consent. One reason that joint wills today have become less common, is the fact they can pose unique problems when one party changes their testamentary intention. Recently, the British Columbia Court of Appeal has offered up an interesting interpretation of the mechanics of a joint will, and what must occur to adequately revoke one in Aulinger v. Oda.[1]
Background
Johannes Siebert (“Johannes”) and Daniela Siebert (“Daniela”) together made a joint will in Germany in 1995 (the “Joint Will”). The Joint Will was handwritten by Daniela and signed by both Johannes and Daniela. The Joint Will simply stated that, in the case of their death, Daniela and Johannes name Daniela’s parents as the sole beneficiaries of their entire estate. At trial, it was found that the Joint Will was made validly pursuant to German law and was thus admissible to probate in British Columbia so long as the Joint Will was not subsequently revoked.
However, in 2019, Daniela became sick with cancer, and less than a month before her death, she made a second will (the “2019 Will”). Similar to the Joint Will the 2019 Will was also handwritten and in German. Unlike the Joint Will, the 2019 Will stated that Johannes would be the sole heir to Daniela’s estate. Additionally in the 2019 Will was a provision revoking all prior declarations in the form of disposition of property on death. In 2022, Johannes died without making an additional will.
Following Johannes’ passing, a dispute arose with respect to the administration of Johannes’ estate between the would be beneficiaries of the Joint Will, and Johannes’ new common law partner. Effectively, the crux of the issue turned on whether or not the Joint Will was revoked by the creation of the 2019 Will. If it was, then Johannes would have passed without a valid will, and the rules of intestacy would govern the disposition of his estate.
At first instance, the Chambers Judge ruled that the 2019 Will did in fact revoke the Joint Will. The Chambers Judge reasoned that, because of the wording in the Joint Will, the intention of Daniela and Johannes was for the Joint Will to only have force and effect if they died simultaneously or if the first to die did so without revoking their participation in the bequest. Therefore, it was ruled that Johannes died intestate under British Columbia Law.
Legal Framework
Before ruling on the fact of the case, the BC Court of Appeal set out a helpful legal framework of the law concerning joint wills in Canada. In doing so, they made a crucial distinction between joint wills and mutual wills.
The exact definition ratified by Canadian courts of joint wills comes from Halsbury’s Laws of England[2] and is as follows:
-
- Joint wills. A joint will is a will made by two or more testators contained in a single document, duly executed by each testator, and disposing either of their separate properties or of their joint property. It is not, however, recognised in English law as a single will. It is in effect two or more wills; it operates on the death of each testator as his will disposing of his own separate property;
Mutual wills on the other hand are wills made by two or more testators that confer reciprocal benefits.[3] Notably, mutual wills can be either contained in separate documents or contained in a single joint document. If it is the latter, then a mutual will can also be a joint will.
The Court of Appeal, citing Re Johnson[4] found that, in the case of mutual wills contained in a joint will, the existence of an agreement not to revoke may by implied by the terms of the wills themselves. In the case of mutual wills contained in separate documents, extrinsic evidence is required to prove an agreement not to revoke.
Accordingly, the Court laid out the key differences between joint and mutual wills at paragraph 28:
…Joint wills are contained in a single document, and mutual wills need not be. Joint wills may but need not necessarily confer reciprocal benefits. A joint will is not a single will—it operates on the death of each testator as that testator’s will disposing of that testator’s own separate property. The 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…[5]
Analysis
The BC Court of Appeal ultimately overturned the lower court’s decision on appeal. In coming to their decision, the Court of Appeal went to great lengths to interpret the Joint Will. In doing so, the Court used the essential principles of construction summarized in Brink v. Reeves Estate[6]:
- The primary objective is to determine the testator’s intention;
- The Will must be considered in its entirety;
- If there is no ambiguity on the face of the will it should be interpreted according to the language used; and
- Only if there is ambiguity should the court resort to evidence of surrounding circumstances.
Notably, the Joint Will was ambiguous with respect to what should be done if one of the testators died before the other. Therefore, the court is permitted to resort to the use of surrounding evidence to ascertain the testamentary intention. There is reference in it to “our entire estate” which suggests an assumption that the property of one would be inherited by the other in the interim. Thus, the Court of Appeal found that it was Johannes and Daniela’s intention that they be each other’s sole heir, and that Daniela’s parents would be the intended beneficiaries following that.
Therefore, the issue turns primarily on whether the Joint Will was revoked by the 2019 Will made unilaterally by Daniela. The Court of Appeal found that it was not revoked, reiterating that a joint will is in law two wills, either of which may be revoked without any effect on the other (absent a specific agreement). The Court noted that the Chambers Judge interpretation of the wills flowed from a fundamental misunderstanding of the legal nature of joint wills generally.
Takeaway
Joint Wills are not something that we see in Canada on a regular basis, given the added difficulties associated with revocation and ascertaining testamentary intention. Joint Wills are primarily created in civil jurisdictions. As such, there is not a wealth of jurisprudence or parliamentary guidance on their interpretation. However, Canadian Courts will still have to interpret them as valid, if and when they appear. Additionally, these cases involving joint wills often raise the issue of mutual wills. As such, the courts are sometimes tempted to conclude that the joint will is evidence of a mutual will agreement, which then in turn can raise a constructive trust issue. Without proper clarification on this, it is easy to see how cases involving joint wills can quickly become problematic. This case, and other the surrounding jurisprudence in Canada (i.e. Re Gillespie)[7] do clearly state however that it is incorrect to say that a joint will by itself is evidence of a mutual wills agreement.
The BC Court of Appeal’s decision here is a much needed clarification on the nature of joint wills and their distinction in law to mutual wills. Although this decision is not necessarily binding law in Ontario or throughout Canada, one would expect Ontario courts to adopt a similar approach with specific reference this decision in the future, given the severe lack of judicial guidance on the interpretation of joint wills.
—
[1] Aulinger v. Oda, 2026 BCCA 13
[2] Halsbury’s Laws of England, (4th ed. reissue, 1998) vol. 50, para. 257:
[3] Supra note 1 at para 24
[4] Re Johnson, 8 D.L.R. (2d) 221, 1957 CanLII 188 (S.K.C.A.) at paras. 15–16
[5] Supra note 1 at para 28
[6] Brink v. Reeves Estate, 2025 BCCA 295 at para. 9
[7] Re Gillespie, [1969] 1 OR 585
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Written by: Mark Polese
Posted on: March 3, 2026
Categories: Commentary
A joint will, is a single legal document created by two or more people, outlining their collective intentions regarding the distribution of their property upon death. Although joint wills have fallen out of fashion over the last century, they still pop up, especially when dealing with holograph or foreign made wills. In modern day, more often than not, we see mutual wills, rather than joint wills. A mutual will is a will made by two or more individuals enter into a binding agreement that their wills will not be revoked or altered without the consent of the other, and that their property will be disposed of according to an agreed scheme, typically conferring reciprocal benefits and ultimately benefiting specified third parties on the death of the survivor. I will note here that a will can be both a joint will and mutual will, though that need not necessarily be the case.
Upon the creation of a joint will, both parties effectively agree to be legally bound to not change their will without the other party’s consent. One reason that joint wills today have become less common, is the fact they can pose unique problems when one party changes their testamentary intention. Recently, the British Columbia Court of Appeal has offered up an interesting interpretation of the mechanics of a joint will, and what must occur to adequately revoke one in Aulinger v. Oda.[1]
Background
Johannes Siebert (“Johannes”) and Daniela Siebert (“Daniela”) together made a joint will in Germany in 1995 (the “Joint Will”). The Joint Will was handwritten by Daniela and signed by both Johannes and Daniela. The Joint Will simply stated that, in the case of their death, Daniela and Johannes name Daniela’s parents as the sole beneficiaries of their entire estate. At trial, it was found that the Joint Will was made validly pursuant to German law and was thus admissible to probate in British Columbia so long as the Joint Will was not subsequently revoked.
However, in 2019, Daniela became sick with cancer, and less than a month before her death, she made a second will (the “2019 Will”). Similar to the Joint Will the 2019 Will was also handwritten and in German. Unlike the Joint Will, the 2019 Will stated that Johannes would be the sole heir to Daniela’s estate. Additionally in the 2019 Will was a provision revoking all prior declarations in the form of disposition of property on death. In 2022, Johannes died without making an additional will.
Following Johannes’ passing, a dispute arose with respect to the administration of Johannes’ estate between the would be beneficiaries of the Joint Will, and Johannes’ new common law partner. Effectively, the crux of the issue turned on whether or not the Joint Will was revoked by the creation of the 2019 Will. If it was, then Johannes would have passed without a valid will, and the rules of intestacy would govern the disposition of his estate.
At first instance, the Chambers Judge ruled that the 2019 Will did in fact revoke the Joint Will. The Chambers Judge reasoned that, because of the wording in the Joint Will, the intention of Daniela and Johannes was for the Joint Will to only have force and effect if they died simultaneously or if the first to die did so without revoking their participation in the bequest. Therefore, it was ruled that Johannes died intestate under British Columbia Law.
Legal Framework
Before ruling on the fact of the case, the BC Court of Appeal set out a helpful legal framework of the law concerning joint wills in Canada. In doing so, they made a crucial distinction between joint wills and mutual wills.
The exact definition ratified by Canadian courts of joint wills comes from Halsbury’s Laws of England[2] and is as follows:
Mutual wills on the other hand are wills made by two or more testators that confer reciprocal benefits.[3] Notably, mutual wills can be either contained in separate documents or contained in a single joint document. If it is the latter, then a mutual will can also be a joint will.
The Court of Appeal, citing Re Johnson[4] found that, in the case of mutual wills contained in a joint will, the existence of an agreement not to revoke may by implied by the terms of the wills themselves. In the case of mutual wills contained in separate documents, extrinsic evidence is required to prove an agreement not to revoke.
Accordingly, the Court laid out the key differences between joint and mutual wills at paragraph 28:
…Joint wills are contained in a single document, and mutual wills need not be. Joint wills may but need not necessarily confer reciprocal benefits. A joint will is not a single will—it operates on the death of each testator as that testator’s will disposing of that testator’s own separate property. The 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…[5]
Analysis
The BC Court of Appeal ultimately overturned the lower court’s decision on appeal. In coming to their decision, the Court of Appeal went to great lengths to interpret the Joint Will. In doing so, the Court used the essential principles of construction summarized in Brink v. Reeves Estate[6]:
Notably, the Joint Will was ambiguous with respect to what should be done if one of the testators died before the other. Therefore, the court is permitted to resort to the use of surrounding evidence to ascertain the testamentary intention. There is reference in it to “our entire estate” which suggests an assumption that the property of one would be inherited by the other in the interim. Thus, the Court of Appeal found that it was Johannes and Daniela’s intention that they be each other’s sole heir, and that Daniela’s parents would be the intended beneficiaries following that.
Therefore, the issue turns primarily on whether the Joint Will was revoked by the 2019 Will made unilaterally by Daniela. The Court of Appeal found that it was not revoked, reiterating that a joint will is in law two wills, either of which may be revoked without any effect on the other (absent a specific agreement). The Court noted that the Chambers Judge interpretation of the wills flowed from a fundamental misunderstanding of the legal nature of joint wills generally.
Takeaway
Joint Wills are not something that we see in Canada on a regular basis, given the added difficulties associated with revocation and ascertaining testamentary intention. Joint Wills are primarily created in civil jurisdictions. As such, there is not a wealth of jurisprudence or parliamentary guidance on their interpretation. However, Canadian Courts will still have to interpret them as valid, if and when they appear. Additionally, these cases involving joint wills often raise the issue of mutual wills. As such, the courts are sometimes tempted to conclude that the joint will is evidence of a mutual will agreement, which then in turn can raise a constructive trust issue. Without proper clarification on this, it is easy to see how cases involving joint wills can quickly become problematic. This case, and other the surrounding jurisprudence in Canada (i.e. Re Gillespie)[7] do clearly state however that it is incorrect to say that a joint will by itself is evidence of a mutual wills agreement.
The BC Court of Appeal’s decision here is a much needed clarification on the nature of joint wills and their distinction in law to mutual wills. Although this decision is not necessarily binding law in Ontario or throughout Canada, one would expect Ontario courts to adopt a similar approach with specific reference this decision in the future, given the severe lack of judicial guidance on the interpretation of joint wills.
—
[1] Aulinger v. Oda, 2026 BCCA 13
[2] Halsbury’s Laws of England, (4th ed. reissue, 1998) vol. 50, para. 257:
[3] Supra note 1 at para 24
[4] Re Johnson, 8 D.L.R. (2d) 221, 1957 CanLII 188 (S.K.C.A.) at paras. 15–16
[5] Supra note 1 at para 28
[6] Brink v. Reeves Estate, 2025 BCCA 295 at para. 9
[7] Re Gillespie, [1969] 1 OR 585
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