Dan Parlow and Devin Lucas successfully represented an estate administrator in a dispute over the legal effect of a 1995 handwritten joint will. The novel issues before the British Columbia Court of Appeal involved the interpretation and purported revocation of a joint will made by a married couple.
The decision is reported at Aulinger v. Oda, 2026 BCCA 13.
Background
Johannes and Daniela Siebert together made a will in Germany on January 18, 1995. The will was handwritten by Daniela Siebert and signed by both of them. The named beneficiaries, Martin and Gertrud Steger, were Daniela Siebert’s parents.
In 2019, Ms. Siebert, less than a month before her passing, drafted a new handwritten will which revoked all her prior declarations and left her estate to Mr. Siebert. Mr. Siebert died in 2022.
Trial Judgment
The initial application before the Supreme Court of British Columbia was made on behalf of the only surviving beneficiary of Mr. Siebert’s estate for a grant of administration with the 1995 will annexed, in which the appellant sought an order that the 1995 will be proved in solemn form.
The respondent, Shawna Oda, who claimed a spousal relationship with Mr. Siebert following the death of his wife, opposed the application, arguing that the 2019 will had revoked the 1995 joint will in its entirety, thereby creating an intestacy.
The chambers judge found, although formally valid, the 1995 will had been fully revoked Ms. Siebert’s 2019 will, leading to Mr. Siebert dying intestate. In arriving at that conclusion, the judge used the terms “mutual will” and “joint will” synonymously.
Court of Appeal Reasons
The primary legal issue before the Court of Appeal was whether the chambers judge erred in interpreting the 1995 will and concluding that its subsequent revocation by one spouse nullified it for her survivor.
The Court determined that the chambers judge had improperly conflated the concepts of joint and mutual wills. The Court clarified that a joint will, although recorded in a single document, legally constitutes two separate wills, each revocable only by the respective testator; whereas, mutual wills are wills made by two or more testators that provide reciprocal benefits. Such mutuality may exist either in separate wills, or in a single joint will.
In the Sieberts’ case, the Court found that, since the 1995 will operated as two separate wills, Ms. Siebert’s 2019 will revoked only her own disposition in the 1995 will and not that of her husband. The Court emphasized the presumption against intestacy and the search for testamentary intent, which supported admitting the 1995 will to probate.
In the result, the appeal was allowed, with the Court pronouncing for the force and validity of the 1995 will in respect of Mr. Siebert’s estate.
Key Takeaways
This decision provides much needed clarity that joint wills and mutual wills are conceptually different. It also serves as an important reminder to the wills and estates Bar that a joint will may still be valid even if one spouse later makes a new will. As such, while joint wills are valid estate planning documents, they often create uncertainty for spouses and can lead to subsequent disputes.
Mutual wills carry different implications. Where the surviving spouse changes her will to exclude or reduce gifts made to beneficiaries contemplated while both were alive, the court will interpret the mutual will to determine if the surviving spouse was under an obligation to refrain from making such change; if so the court may declare the property subject to the intended gift, to be held in trust for the originally intended beneficiary.
If you have any questions about this decision or the interpretation of joint or mutual wills, please do not hesitate to contact the authors.
Dan Parlow
604-331-8322
Devin Lucas
604-331-8306