Can A Draft Will Be Valid If The Person Dies Before Signing It? A New BC Court Decision Explains

It is not uncommon for British Columbians to start the estate planning process and never get around to signing the final documents. What happens if someone provides instructions for a will, reviews draft versions, but passes away before the will is formally executed?

The decision highlights both the limits of the court’s powers and its flexibility when attempting to carry out a deceased person’s final wishes without a signed will.

Krista Henriksen and her long-time partner, Awad Mohamed, met with an estate planning lawyer to prepare mirror wills. Their instructions were clear: upon the death of one partner, the other would be the executor and inherit the estate.

A draft will was prepared in Mr. Mohamed’s name, with notes indicating the few provisions that would differ in Ms. Henriksen’s will. The lawyer intended to prepare Ms. Henriksen’s mirrored version once the drafts were finalized.

Before the final documents could be signed, Ms. Henriksen unexpectedly passed away.

After her death, their lawyer prepared a version of the will using Ms. Henriksen’s name. Mr. Mohamed then asked the court to recognize that document as her valid will under section 58 of WESA, which gives the court discretion to give effect to a document that does not otherwise comply with the formal requirements of the Act.

The short answer is no.

The court found that while section 58 gives judges broad authority to cure deficiencies in wills, the document being validated must be “authentic” and must originate during the deceased’s lifetime.

Justice Morley concluded that a lawyer cannot create a new will based on oral instructions after someone dies and then ask the court to approve it. Doing so would go beyond the purpose of section 58 and effectively eliminate the longstanding principle that wills must be documented during a person’s lifetime.

Although the court rejected the will that was drafted post-mortem, it found another solution.

There was an earlier draft created before Ms. Henriksen’s death in Mr. Mohamed’s name. While the draft will named Mr. Mohamed as the testator, the evidence clearly showed that Ms. Henriksen intended to have a mirror will with the same terms (except with her name replaced with Mr. Mohamed’s and vice versa).

Using section 59 of WESA, the court rectified the draft will to carry out Ms. Henriksen’s intentions by substituting the correct names throughout the document.

As a result, the court was able to uphold Ms. Henriksen’s true testamentary intentions while remaining within the limits of the legislation.

If a loved one dies before signing a will, all hope is not necessarily lost. Courts may still be able to recognize certain documents that clearly demonstrate the deceased’s final intentions.

However, each case is highly fact-specific and depends on the available evidence.

Obtaining legal advice early can help determine whether an application under sections 58 or 59 of WESA may be available.

At Watson Goepel LLP, our estate litigation lawyers regularly assist executors, beneficiaries, and family members with:

Typically, under WESA, a will is only valid if it is:

(a) in writing,

(b) signed by the will-maker in the presence of two witnesses; and

(c) signed by the witnesses.

Exceptions include where:

• the court orders it valid despite a deficiency;
• it is recognized as valid made in accordance with other laws; or
• is valid under another provision of WESA.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.