Can a Post-Death Draft Be a Will? Henriksen Estate, 2026 BCSC 1058

Henriksen Estate (Re), 2026 BCSC 1058 | Justice Morley | June 3, 2026

Overview

Henriksen Estate (Re), 2026 BCSC 1058, is a brief but legally interesting decision from Justice Morley addressing what appears to be a novel question in BC estate law: can a document drafted after a testator’s death be made effective under section 58 of WESA? The answer was no. However, the court found an alternative path to the same result through section 59, and the decision raises some questions worth considering.

Background

Krista Henriksen and Awad Hussein Mohamed married in 1992, divorced in 2003, but reconciled shortly afterward and resumed a marriage-like relationship, maintaining separate homes. In January 2025, they met with estate planning solicitor Jessica Poon to give instructions for mirror wills, each leaving their estate to the other, with contingent beneficiaries. Ms. Henriksen had no children; her next of kin were Mr. Mohamed (if he qualified as a spouse under WESA) or her siblings. Ms. Poon’s standard practice for mirror wills was to finalize one version before producing the mirrored version. She sent drafts in Mr. Mohamed’s name, with annotations noting where Ms. Henriksen’s will would differ. An updated version (the “June Draft”) was delivered June 25, 2025. A signing meeting was anticipated. Ms. Henriksen died suddenly on July 4, 2025, before either will was signed. After her death, Mr. Mohamed asked Ms. Poon’s office to prepare a mirrored version of the June Draft with Ms. Henriksen as testator and Mr. Mohamed as executor and residual beneficiary. This document (the “Post-Death Draft”) was prepared while Ms. Poon was on vacation. Mr. Mohamed applied under section 58 of WESA to have it declared effective as Ms. Henriksen’s will. Ms. Henriksen’s siblings were served but did not appear.

The Section 58 Question: Can a Post-Death Document Be Cured

Justice Morley conducted a careful statutory interpretation analysis and concluded that section 58 cannot apply to a document created after the testator’s death. Although section 58 does not explicitly require a document to pre-date death, the court held that “authenticity” is a threshold requirement of the two-part test established in Hadley Estate (Re), 2017 BCCA 311. A document drafted by a solicitor after death (based on the deceased’s oral instructions) cannot be authentic in the relevant sense. The court reasoned that there is no meaningful difference between a judge drafting a will after death and a solicitor doing so and asking a court to bless the result. Section 58 does not permit either.

The court also noted that allowing post-death solicitor drafts to ground valid wills would effectively reverse the writing requirement that has underpinned testamentary law since medieval canon law, a step the Legislature would have taken explicitly if it had intended it. Accordingly, the Post-Death Draft could not be made effective under section 58.

The Section 59 Solution: Rectification

The court then turned to section 59 of WESA, which permits rectification of a will where it fails to carry out the will-maker’s intentions due to an accidental slip or omission, a misunderstanding of instructions, or a failure to carry out instructions. Justice Morley found that the June Draft (prepared before Ms. Henriksen’s death, delivered to her, and apparently reviewed by her) failed to carry out her instructions under section 59(1)(c), simply because Ms. Poon’s mirror-will practice had produced it in Mr. Mohamed’s name rather than hers. The court declared the June Draft effective as Ms. Henriksen’s will, with names substituted throughout pursuant to a detailed order. Mr. Mohamed was awarded full indemnity costs from the estate.

Commentary

The result in Henriksen is sympathetic. Ms. Henriksen’s testamentary intentions were clearly established, and it would have been harsh for her estate to pass on intestacy simply because she died before a signing meeting could be arranged. The section 58 analysis is careful and well-reasoned, and will likely stand as useful authority on the authenticity requirement. With respect, however, the section 59 route raises a statutory difficulty that the unopposed nature of the application meant was never squarely addressed. Section 59(1) empowers the court to rectify “a will” that fails to carry out the will-maker’s intentions. The language presupposes the existence of a will and confers a power to correct errors within it. The paradigm case is Simpson v. Zaste, 2022 BCCA 208, where a valid, executed will failed to account for the operation of a shareholder agreement on the intended gift. A valid will existed; it contained a mistake; the court fixed it. The June Draft was not “a will” in that sense. It had never been signed. It had never named Ms. Henriksen as testator. It was the mirror will of another person, still in draft. Applying section 59 to transform it into Ms. Henriksen’s will involves a significant stretch of the provision’s natural meaning. It is worth asking whether section 58 could have done the work here without engaging section 59 at all, not by curing the June Draft or the Post-Death Draft as Ms. Henriksen’s will, but by curing Ms. Poon’s own notes or emails as a record of Ms. Henriksen’s testamentary intentions. Section 58’s curative power applies to any “record, document or writing” that represents the testamentary intentions of the deceased, and the definition of “record” in the provision is very broad. Ms. Poon’s detailed notes of the January 2025 meeting and her subsequent emails to Ms. Henriksen were authentic documents created during Ms. Henriksen’s lifetime that directly recorded her instructions. They would appear to satisfy the authenticity threshold. The precedent for this approach is McGavin Estate (Re), 2023 BCSC 819. In that case, Justice E. McDonald made a section 58 order in respect of two solicitors’ reporting letters to Marian

McGavin outlining instructions for a new will, one of which bore her handwritten annotations. The court held that the letters were authentic and reflected her fixed and final testamentary intentions, and declared them effective as her last will and admitted them to probate. The documents cured in McGavin Estate, which were reporting letters from a solicitor to a client, are arguably further from a conventional will than Ms. Poon’s contemporaneous meeting notes and instruction emails. If solicitors’ reporting letters can be cured under section 58, it is at least worth asking whether Ms. Poon’s records could have been as well. That question was never put to the court, and the unopposed nature of the application meant there was no occasion to explore it. A further question the judgment leaves unanswered is why the application was necessary at all. Justice Morley noted at paragraph 7 that Ms. Henriksen’s next of kin would be either Mr. Mohamed “if he is legally characterized as a ‘spouse’ within the meaning of WESA”, or her siblings. If Mr. Mohamed did qualify as a spouse, he would have been entitled to the entire estate on intestacy without any curative order. The judgment does not explain why that route was not pursued. The specific bequest of Ms. Henriksen’s jewelry to Mr. Mohamed’s niece Hanan, which would not pass on intestacy, may be part of the answer, as may uncertainty about whether the post-divorce reconciliation met the WESA definition of spouse. The judgment is simply silent on the point, and in an unopposed application there was no one to raise it. None of this is to suggest that the outcome was wrong. On the facts, giving effect to Ms. Henriksen’s clearly expressed intentions is plainly the just result. But the statutory route by which the court arrived there invites scrutiny, and these are the kinds of questions that a contested application would have forced into the open.

Key Takeaways for BC Estate Litigators

• Section 58 requires an authentic pre-death document. A document drafted by a solicitor after the testator’s death cannot ground a curative order under section 58,regardless of how faithfully it reflects the deceased’s known intentions.
• Section 59 was applied to a document that was not, on its face, “a will.” The rectification power in section 59 presupposes the existence of a will to be corrected. Whether it can be applied to an unsigned draft in another person’s name is a question that remains to be tested in a contested proceeding.
• Section 58 applied to the solicitor’s own records may have been another route. In McGavin Estate (Re), 2023 BCSC 819, solicitors’ reporting letters to the will-maker were cured as a valid will under section 58. Ms. Poon’s contemporaneous meeting notes and instruction emails (authentic pre-death records of Ms. Henriksen’s testamentary intentions) may have been equally amenable to that approach.
• Mirror will practice carries risk. Henriksen illustrates what can go wrong when only one version of a mirror will is drafted during the clients’ lifetimes. Solicitors may wish to consider producing drafts in both names simultaneously.