In what the Court considered a novel case, it had to determine whether it was possible to validate a draft will pursuant to section 58 of British Columbia’s Wills, Estates and Succession Act S.B.C. 2009, c. 13 (“WESA”).
Background:
Krista Henrinksen died on July 4, 2025 (the “Deceased” or “Estate”) and was survived by her next-of-kin Awad Mohamed (“Awad”).[1]
The Court stated that while it was not necessary to “legally characterize” the Deceased and Awad’s relationship, it was nonetheless relevant to understanding the nature of the document sought to be validated pursuant to s.58 of the WESA.[2]
The Deceased and Awad married in or around 1992 and divorced in 2003. Awad alleged that following the divorce, and until the Deceased’s passing, the two reconciled an entered a marriage-like relationship without formally re-marrying.[3]
In or around January 2025, the Deceased and Awad met with a solicitor to discuss, amongst other things, their testamentary planning, which included the preparation of mirror wills.[4]
The drafting solicitor provided notes from her initial conversation with the Deceased and Awad, which demonstrated the following:
- The Deceased and Awad considered themselves spouses;
- Neither were subject to undue influence; and
- The drafting solicitor’s instructions were to draft mirror wills.[5]
In or around February 2025, the drafting solicitor provided a draft copy of the mirror will to both the Deceased and Awad. Only one copy of the draft will was provided, which was drafted in Awad’s name. However, in the drafting solicitor’s email providing a copy of the will, she outlined:
Because they will be mirror documents (except as detailed below and in the documents), I will finalize the draft for one person before I create the final version of the spouse’s document.[6]
After a delay in the matter due to an unpaid invoice, on or about June 25, 2025, the drafting solicitor provided an updated draft of the will in Awad’s name (the “June Draft”) and requested a meeting with the Deceased and Awad to execute same.[7]
Unexpectedly, the Deceased died on July 4, 2025. After which, Awad requested that the drafting solicitor provide a mirrored copy of the June Draft prepared in the Deceased’s name, and appointing Awad as estate trustee and beneficiary of the residue of the Estate.[8] The June Draft was revised and provided as a draft to the funeral home (the “Post Death Draft”).[9]
Validity of the Post Death Draft:
Statutory Interpretation:
The Honourable Justice Morley turned his mind to the statutory interpretation of s.58 of the WESA – particularly the meaning of record, document or writing in s.58(2) of the WESA, and whether a document created post death fits that interpretation.[10]
In doing so, his Honour poignantly highlighted that the foremost consideration in statutory interpretation is the statute’s text.[11] Justice Morley clearly sets out that, “statutes should not be interpreted literally, but they must be interpreted faithfully”.[12] In doing so, the context in which legislation was created (to form an understanding of what the legislature has written or said) along with the policy goals sought to be accomplished by that legislation, are necessary for a faithful interpretation.[13]
Section 58 of the WESA:
58 (1) In this section, “record” includes data that
(a)is recorded or stored electronically,
(b)can be read by a person, and
(c)is capable of reproduction in a visible form.
(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents
(a)the testamentary intentions of a deceased person,
(b)the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or
(c)the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.
Application:
In considering the above outlined approach to statutory interpretation, Justice Morley points out that s.58(2) of the WESA does not limit the definition of record, document or writing, to that which is made during the testator’s lifetime.[14] Furthermore, “record” pursuant to s.58(1) is defined broadly.[15]
In considering the context and purpose surrounding the enactment of s.58 of the WESA, his Honour notes that the enactment of the provision came as “significant reform” to British Columbia’s pre-existing law as set out in the predecessor Wills Act, R.S.B.C. 1996, c. 489.[16] The enactment of s.58 is described as a curative provision, allowing more flexibility in recognizing testamentary intentions.[17]
In taking this approach, his Honour states that “what is of principle importance are testamentary intentions, not how they are recorded”.[18] However, what remains is that a “court must find a record, document, writing or marking that is to be given effect”.[19] Therefore, while intentions are important, “a will must be in writing or at least recorded – and s.58 does not permit a court to author a will but just to give effect to a record, document or writing”, even if the intentions of the deceased are well established.[20]
Accordingly, his Honour saw little difference in a will drafted after death by a court or by a solicitor, regardless of its basis in testamentary intentions.
Additionally, in Hadley Estate (Re), 2017 BCCA 311, the British Columbia Court of Appeal outlined a two-part test that must be satisfied to validate a document under s.58 of the WESA. The test required determining whether (1) the will was authentic and (2) whether the document represents the deceased’s testamentary intentions.[21]
His Honour found that “an authentic document must date to the life of the deceased”.[22] Whereas, on these facts, the Post Death Draft, was dated after the life of the deceased.
Further, it would be in defiance of long-standing common-law and statute to find that a will drafted post death and based on orally communicated intentions could be a valid will.[23]
Therefore, his Honour held that the Post Death Draft could not be seen as a record, document or writing pursuant to s. 58 of the WESA.
Rectification:
Despite his Honour’s determination on s.58 of the WESA, he found a remedy still existed, rectification.
Section 59 of the WESA sets out:
59 (1) 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.
His Honour found that the present case fell within the meaning of s.59(1)(C). As such, the June Draft, which was circulated to the Deceased before her death and reviewed[24] , could be rectified by naming the Deceased as the testator, and mirroring Awad’s will by naming the Awad as estate trustee and residual beneficiary.
Key Takeaways:
A will drafted following the death of the alleged testator does not satisfy the definition of “record, document, or writing” pursuant to s.58 of the WESA. However, where applicable, rectification can be used to give effect to the testamentary intentions of the deceased.
—
[1] Henriksen Estate (Re), 2026 BCSC 1058 (CanLII) at para 7.
[2] Ibid at para 8.
[3] Ibid at para 9.
[4] Ibid at para 11.
[5] Ibid at para 12.
[6] Ibid at para 14.
[7] Ibid at para 16 & 17.
[8] Ibid at para19.
[9] Ibid at para 20.
[10] Ibid at para 23.
[11] Ibid at para 25 citing Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A, 2024 SCC 43 at para 24.
[12] Ibid at para 29.
[13] Ibid at para 26 & 27.
[14] Ibid at para 30.
[15] Ibid at para 31.
[16] Ibid at para 32, citing Hadley Estate (Re), 2017 BCCA 311 at paras 1 and 33.
[17] Ibid at para 36.
[18] Ibid at para 39.
[19] Ibid at para 40.
[20] Ibid at para 42.
[21] Ibid at para 44.
[22] Ibid at para 45.
[23] Ibid at para 46.
[24] Ibid at para 49.
Written by: Jessica Homer
Posted on: July 29, 2026
Categories: Commentary, WEL Newsletter
In what the Court considered a novel case, it had to determine whether it was possible to validate a draft will pursuant to section 58 of British Columbia’s Wills, Estates and Succession Act S.B.C. 2009, c. 13 (“WESA”).
Background:
Krista Henrinksen died on July 4, 2025 (the “Deceased” or “Estate”) and was survived by her next-of-kin Awad Mohamed (“Awad”).[1]
The Court stated that while it was not necessary to “legally characterize” the Deceased and Awad’s relationship, it was nonetheless relevant to understanding the nature of the document sought to be validated pursuant to s.58 of the WESA.[2]
The Deceased and Awad married in or around 1992 and divorced in 2003. Awad alleged that following the divorce, and until the Deceased’s passing, the two reconciled an entered a marriage-like relationship without formally re-marrying.[3]
In or around January 2025, the Deceased and Awad met with a solicitor to discuss, amongst other things, their testamentary planning, which included the preparation of mirror wills.[4]
The drafting solicitor provided notes from her initial conversation with the Deceased and Awad, which demonstrated the following:
In or around February 2025, the drafting solicitor provided a draft copy of the mirror will to both the Deceased and Awad. Only one copy of the draft will was provided, which was drafted in Awad’s name. However, in the drafting solicitor’s email providing a copy of the will, she outlined:
Because they will be mirror documents (except as detailed below and in the documents), I will finalize the draft for one person before I create the final version of the spouse’s document.[6]
After a delay in the matter due to an unpaid invoice, on or about June 25, 2025, the drafting solicitor provided an updated draft of the will in Awad’s name (the “June Draft”) and requested a meeting with the Deceased and Awad to execute same.[7]
Unexpectedly, the Deceased died on July 4, 2025. After which, Awad requested that the drafting solicitor provide a mirrored copy of the June Draft prepared in the Deceased’s name, and appointing Awad as estate trustee and beneficiary of the residue of the Estate.[8] The June Draft was revised and provided as a draft to the funeral home (the “Post Death Draft”).[9]
Validity of the Post Death Draft:
Statutory Interpretation:
The Honourable Justice Morley turned his mind to the statutory interpretation of s.58 of the WESA – particularly the meaning of record, document or writing in s.58(2) of the WESA, and whether a document created post death fits that interpretation.[10]
In doing so, his Honour poignantly highlighted that the foremost consideration in statutory interpretation is the statute’s text.[11] Justice Morley clearly sets out that, “statutes should not be interpreted literally, but they must be interpreted faithfully”.[12] In doing so, the context in which legislation was created (to form an understanding of what the legislature has written or said) along with the policy goals sought to be accomplished by that legislation, are necessary for a faithful interpretation.[13]
Section 58 of the WESA:
58 (1) In this section, “record” includes data that
(a)is recorded or stored electronically,
(b)can be read by a person, and
(c)is capable of reproduction in a visible form.
(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents
(a)the testamentary intentions of a deceased person,
(b)the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or
(c)the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.
Application:
In considering the above outlined approach to statutory interpretation, Justice Morley points out that s.58(2) of the WESA does not limit the definition of record, document or writing, to that which is made during the testator’s lifetime.[14] Furthermore, “record” pursuant to s.58(1) is defined broadly.[15]
In considering the context and purpose surrounding the enactment of s.58 of the WESA, his Honour notes that the enactment of the provision came as “significant reform” to British Columbia’s pre-existing law as set out in the predecessor Wills Act, R.S.B.C. 1996, c. 489.[16] The enactment of s.58 is described as a curative provision, allowing more flexibility in recognizing testamentary intentions.[17]
In taking this approach, his Honour states that “what is of principle importance are testamentary intentions, not how they are recorded”.[18] However, what remains is that a “court must find a record, document, writing or marking that is to be given effect”.[19] Therefore, while intentions are important, “a will must be in writing or at least recorded – and s.58 does not permit a court to author a will but just to give effect to a record, document or writing”, even if the intentions of the deceased are well established.[20]
Accordingly, his Honour saw little difference in a will drafted after death by a court or by a solicitor, regardless of its basis in testamentary intentions.
Additionally, in Hadley Estate (Re), 2017 BCCA 311, the British Columbia Court of Appeal outlined a two-part test that must be satisfied to validate a document under s.58 of the WESA. The test required determining whether (1) the will was authentic and (2) whether the document represents the deceased’s testamentary intentions.[21]
His Honour found that “an authentic document must date to the life of the deceased”.[22] Whereas, on these facts, the Post Death Draft, was dated after the life of the deceased.
Further, it would be in defiance of long-standing common-law and statute to find that a will drafted post death and based on orally communicated intentions could be a valid will.[23]
Therefore, his Honour held that the Post Death Draft could not be seen as a record, document or writing pursuant to s. 58 of the WESA.
Rectification:
Despite his Honour’s determination on s.58 of the WESA, he found a remedy still existed, rectification.
Section 59 of the WESA sets out:
59 (1) 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.
His Honour found that the present case fell within the meaning of s.59(1)(C). As such, the June Draft, which was circulated to the Deceased before her death and reviewed[24] , could be rectified by naming the Deceased as the testator, and mirroring Awad’s will by naming the Awad as estate trustee and residual beneficiary.
Key Takeaways:
A will drafted following the death of the alleged testator does not satisfy the definition of “record, document, or writing” pursuant to s.58 of the WESA. However, where applicable, rectification can be used to give effect to the testamentary intentions of the deceased.
—
[1] Henriksen Estate (Re), 2026 BCSC 1058 (CanLII) at para 7.
[2] Ibid at para 8.
[3] Ibid at para 9.
[4] Ibid at para 11.
[5] Ibid at para 12.
[6] Ibid at para 14.
[7] Ibid at para 16 & 17.
[8] Ibid at para19.
[9] Ibid at para 20.
[10] Ibid at para 23.
[11] Ibid at para 25 citing Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A, 2024 SCC 43 at para 24.
[12] Ibid at para 29.
[13] Ibid at para 26 & 27.
[14] Ibid at para 30.
[15] Ibid at para 31.
[16] Ibid at para 32, citing Hadley Estate (Re), 2017 BCCA 311 at paras 1 and 33.
[17] Ibid at para 36.
[18] Ibid at para 39.
[19] Ibid at para 40.
[20] Ibid at para 42.
[21] Ibid at para 44.
[22] Ibid at para 45.
[23] Ibid at para 46.
[24] Ibid at para 49.
Author