Henriksen Estate (Re): Is A Will Created After Death Legally Valid?

The British Columbia Supreme Court in Henriksen Estate (Re) recently faced a tough question: can an unsigned will drafted after death be cured as valid under the Wills, Estates and Succession Act (“WESA”)? Although the Court had to consider multiple provisions of WESA to reach its decision, it ultimately answered the question in the affirmative: yes, a will drafted after death can be a valid will.

This is not the first case in which the Court has considered the validity of a will which was finalized post-death and did not comply with WESA. In Fleury Estate (Re), the deceased never saw the final version of her will. She had provided instructions for a draft will that the Court later cured under WESA to make it valid. However, Henriksen Estate (Re) is novel in that the court had to grapple with curing a will that was drafted after the deceased had died.

In January 2025, Ms. Henriksen and Mr. Mohamed met with a lawyer, Ms. Poon, to have mirror wills prepared. Ms. Poon prepared a draft will for the couple that was in Mr. Mohamed’s name. The intention was for the couple to review and approve the draft, after which Ms. Poon would finalize it and prepare a corresponding mirror will for Ms. Henriksen. The parties discussed revisions to the first draft, and Ms. Poon finalized the first will (the “June Draft”), which remained in Mr. Mohamed’s name. The next step was for the couple to attend one more meeting to each sign their wills. However, Ms. Henriksen passed away before a will was ever made in her name.

In the Summer of 2025, Mr. Mohamed arranged for Ms. Henriksen’s funeral. The funeral home requested a copy of her will. While Ms. Poon was away on vacation, Mr. Mohamed contacted her law office. The office drafted a will in Ms. Henriksen’s name that mirrored the June Draft (the “Post-Death Draft”). Because the will was created after Ms. Henriksen had died, it did not comply with the formal requirements under WESA for a valid will (not only had Ms. Henriksen not signed the Post-Death Draft, she had never seen it!). Mr. Mohamed therefor turned to the Court and asked for an order curing the deficiencies in the Post-Death Draft.

The Limits to Section 58

Section 58 of WESA allows the court to cure deficiencies in a “record, document or writing” if it reflects the testamentary intentions of a deceased person. This remedial provision exists to validate wills that otherwise do not meet the formal requirements under WESA. In Henriksen Estate (Re), the Court had to determine whether this term can apply to a will made after death. The Court undertook an exercise of statutory interpretation and concluded that, even though WESA does not explicitly state that a “record, document or writing” must have existed before the deceased’s death, applying section 58 in this context would effectively allow the Court to create a will. This would take section 58 too far. As a result, the Court could not give effect to the Post-Death Draft because it did not exist before Ms. Henriksen died.

An Alternative Route Under Section 59

In an interesting turn of events, the Court noted that it could instead rectify the June Draft (the one in Mr. Mohamed’s name) under section 59 of WESA because it reflected the testamentary intentions of Ms. Henriksen. Even though the June Draft had the wrong name on it, Ms. Henriksen had reviewed the document and clearly intended for her own will to reflect the same terms, but with the names of the will-maker and primary beneficiary switched. The court ruled the June Draft to be fully effective as though it had been made as Ms. Henriksen’s own will.

This allowed the Court to give effect to Ms. Henriksen’s testamentary intentions without relying on the Post-Death Draft. Only the June Draft existed before Ms. Henriksen’s death and provided sufficient evidence of her wishes, as she had seen it and approved of it. Henriksen Estate (Re) stands as a reminder that a will may still be given effect if someone dies before signing it. However, where a will does not meet the formal requirements under WESA, a court application may be necessary to determine whether it can be cured under section 58 or otherwise given effect under section  59. The case also highlights the urgency in finalizing estate plans without delay, to avoid the matter later going to court.