Henriksen Estate (Re) – Further Clarification (and Questions) on the Scope of Section 58 of WESA

In Henriksen Estate (Re), 2026 BCSC 1058, (“Henriksen”) the BC Supreme Court offered fresh guidance on the scope of section 58 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”), and in particular, whether it can be used to cure a posthumously drafted will. 

Although the Court found that s. 58 of WESA was not available for a document prepared by a solicitor after the testator died, owing to the unique factual circumstances of the case, the Court applied s. 59 of WESA to rectify a previous draft of the mirror will in the name of the testator’s spouse, such that it was given its full effect as if it had been the testator’s original will. 

Henriksen Estate (Re)

The petitioner was the common law spouse of the deceased,. Shortly before the deceased died unexpectedly, the petitioner and the deceased had conducted estate planning with a solicitor that involved mirror wills.

In January 2025, the petitioner and the deceased met with their solicitor to discuss, amongst other matters, the preparation of mirror wills with each primarily benefitting from the other’s estate. The solicitor sent a draft will to the couple in February 2025. However, in accordance with the law firm’s practice for mirror wills, the draft will provided was only in the name of one of the spouses: the petitioner.

The parties reconvened in June 2025, when the petitioner and the deceased provided minor revisions to the draft will to their solicitor. They met with their solicitor to confirm those changes, and the solicitor prepared and sent back a further draft will incorporating the changes, but still only in the name of the petitioner (albeit with certain terms noted as applying to only the deceased).

Unfortunately, the deceased died suddenly before the solicitor could prepare a draft of the will in her name.  After the deceased’s death, the petitioner asked the solicitor’s firm to prepare a draft of the will in the deceased’s name for the purposes of sending the same to the funeral home.

The question before the Court was whether the copy of the will in the deceased’s name that was sent to the funeral home (which is referred to as the “Post-Death Draft”) can be ordered to be fully effective under WESA under s. 58, in the circumstances.

Section 58 of WESA

Section 58 of WESA was introduced in 2014 and reflected a change in the existing law in terms of accepting documents that did not comply with the formal requirements of testamentary documents. It is a “curative power” according to the BC Court of Appeal in Hadley Estate (Re), 2017 BCCA 331 (“Hadley Estate”).

For an application under s. 58 to be successful, the Court must be satisfied that a given document is both 1) authentic; and 2) represents the testamentary intentions of the deceased person.

There are cases where the courts have found that a draft will or other documents prepared by the deceased’s lawyer can be confirmed as the deceased’s testamentary document under s. 58. However, Henriksen is a unique case in that it is the first time the court has been asked to apply s. 58 to a will that was technically prepared after the death of the testator. 

Despite finding the Post-Death Draft to represent the testamentary intentions of the deceased, the Court in Henriksen found it could not give full effect to the draft will as it was not an “authentic” document and thus did not meet the first part of the test under s. 58.   The Court held that for a document to be authentic, it “must date to the life of the deceased.” Section 58 of WESA allows a Court to give full effect to an existing document that, for whatever reason, does not comply with the Act.

The Court further emphasized the written requirement for wills that “goes back to medieval canon law.” The Court was especially concerned with the implications of giving effect to a will that was drafted after the death of the testator, as it could represent a dramatic departure from the legal tradition underlying the concept of a will. For example, if a document prepared after the testator’s death could be cured under s. 58, then the deceased’s lawyer could conceivably rely on an oral conversation with the testator to create a will for the purposes of the s. 58 application. 

Section 59 of WESA

After rejecting the petitioner’s claim under s. 58 of WESA, the Court turned to s. 59 of of WESA as an alternative remedy. Specifically, the Court utilized s. 59[1][c] which allows for rectification of a will where the will fails to carry out the will-maker’s instructions.

The draft mirror will in the petitioner’s name that was prepared and sent by the solicitor prior to the deceased’s death was, in essence, intended to reflect the terms of the wills of both spouses. For example, the draft will included a provision relating explicitly to the deceased’s jewelry. The Court found that in the circumstances, it was able to rectify that draft mirror will by, among other things, substituting in the deceased’s name for the petitioner where applicable.

It will be quite uncommon for s. 59 of WESA to be used to rectify a will by changing the name of the will-maker, but given it was clear the draft mutual will in this case reflected the deceased’s testamentary intentions, the circumstances were such that this relief provided a practical solution to the issue facing the Court.

Key Takeaways

The analysis and result in Henriksen adds further discussion into the authenticity analysis under s. 58 of WESA where the document or record at issue was prepared by the deceased’s solicitor and not the deceased themselves.  More directly, the result may not square neatly with the Court’s decision in Fleury Estate (Re), 2025 BCSC 22 (“Fleury”). In that case, an unsigned draft will prepared by the testator’s solicitor was found to be authentic, despite the contents of the will being prepared in response to instructions provided by the testator’s friend at a time when the testator was no longer capable of giving instructions.

The apparent tension between the Henriksen and Fleury decisions relates to whether a document that is created at a time the testator cannot review the same will satisfy the authenticity requirement under section 58 of WESA. In Henriksen, a will prepared posthumously but based on the deceased’s instructions was not found to be “authentic”. In Fleury, a will prepared three days prior to the testator’s death, when the testator was incapable of providing direct instructions to their solicitor to make the same, was found to be authentic.

Going forward, it will be interesting to see how the courts apply the “authenticity” analysis where the document or record at issue was not prepared by the deceased.  In most cases, that analysis is focused on whether it was actually the deceased who prepared the document or record. The purpose of that requirement is less clear when it is accepted that the deceased did not prepare the document.  For now, it appears that for s. 58 to apply to a document or record, it must have been created during the life of the testator, regardless of whether the testator communicated their intentions to their solicitor to prepare the same.

A practical takeaway from Henriksen for estates counsel is that where clients request mirror wills, separate drafts should be provided in each of the clients’ names. The Court’s analysis regarding s. 58 of WESA suggests that had the draft will provided to the deceased and the petitioner been in the deceased’s name, it may have been willing to give the draft will full effect. To minimize future risk to clients seeking mirror wills, two separately named drafts should be provided each time changes are made.