Introduction

Estate litigation often arises from homemade testamentary documents where the intent of the testators is not clearly defined by legal standards. In the recent decision of Aulinger v. Oda, 2026 BCCA 13, the Court of Appeal for British Columbia provided crucial clarity on the legal distinction between "joint wills" and "mutual wills." The Court overturned a lower court decision that had incorrectly declared an intestacy, thereby preserving the testamentary intentions of a deceased husband despite his wife's prior revocation of the document.

Case Background

The dispute centered on the estate of Johannes Siebert. In 1995, Johannes and his wife, Daniela Siebert, executed a handwritten will in Germany. The document, signed by both parties, was brief and stated that in case of their death, they named Daniela's parents, Martin and Gertrud Steger, as universal heirs. This document was a classic "joint will"—a single document containing the wills of two persons.

Decades later, in 2019, Daniela executed a new handwritten will. In this new document, she expressly revoked all prior binding declarations and named Johannes as her sole heir. Daniela passed away shortly thereafter in 2019. Johannes died in 2022 without ever making a new will.

The Respondent, Shawna Oda, who was in a relationship with Johannes prior to his death, argued that Daniela's 2019 revocation of the joint will effectively revoked the entire 1995 document, meaning Johannes died intestate (without a will). The chambers judge agreed, ruling that the 1995 will had no force and effect. The Appellant, representing the beneficiary under the 1995 will, appealed this finding.

The Court's Analysis: Joint vs. Mutual Wills

The primary issue on appeal was whether the chambers judge erred in law by concluding that Daniela's revocation of her portion of the joint will also revoked Johannes's portion. The Court of Appeal, led by Justice Gomery, held that the lower court had fundamentally misunderstood the legal nature of a joint will.

The Legal Distinction

The Court clarified that while the terms are often used loosely, "joint wills" and "mutual wills" are conceptually distinct legal vehicles. Citing Halsbury's Laws of England, the Court noted that a joint will is merely a will made by two or more testators contained in a single document. In the eyes of the law, it is not a single will but rather two or more wills that operate separately on the death of each testator.

Conversely, a mutual will implies a contractual agreement between testators not to revoke their wills. This creates a constructive trust that binds the survivor. The Court found no evidence of such an agreement between the Sieberts. Therefore, the 1995 document was simply a joint will.

Revocation Under WESA

Under section 55 of the Wills, Estates and Succession Act (WESA), a will can only be revoked by the testator. The Court emphasized that because a joint will comprises two separate legal instruments, one party cannot revoke the other party's will. When Daniela made her new will in 2019, she effectively revoked her share of the 1995 joint will. However, she lacked the legal capacity to revoke Johannes's share. Since Johannes never executed a new will before his death in 2022, his portion of the 1995 joint will remained valid.

Interpretation and the "Armchair Rule"

The Court also addressed the interpretation of the phrase "in case of our death" found in the 1995 will. The Respondent argued this meant the will was only valid if the couple died simultaneously. The Court rejected this narrow interpretation.

Applying the "armchair rule," which allows the court to consider the surrounding circumstances at the time the will was made, Justice Gomery noted that the couple was young, childless, and closely connected to the beneficiaries. It was implausible they intended the will to apply only in the unlikely event of simultaneous death. Furthermore, the Court relied on the presumption against intestacy, a legal principle that favors an interpretation resulting in a valid will over one that leaves the estate with no direction.

Implications for BC Law

This decision reinforces the individual nature of testamentary freedom, even when documents are physically shared. It serves as a precedent that a "joint will" does not automatically imply mutuality or a contract not to revoke. Unless there is clear evidence of an agreement to create mutual wills, the courts will treat the document as separate wills for each signatory. Consequently, the actions of one testator—even revocation—do not impact the validity of the other testator's dispositions.

Practical Advice for Testators

The confusion in Aulinger v. Oda stemmed largely from the use of a handwritten, lay-drafted joint will. To avoid similar litigation:

  • Avoid Joint Wills: While legally permissible, executing a single document for two people often creates confusion regarding revocation and interpretation. Separate wills are cleaner and less prone to litigation.
  • Be Clear on Mutuality: If spouses intend to be bound by a contract not to revoke their wills (mutual wills), this agreement should be explicitly documented, ideally within the wills themselves or a separate contract.
  • Review After Major Life Events: Johannes could have avoided this dispute had he reviewed his estate planning after his wife's death in 2019. Regular updates to estate documents ensure that changes in family structure are accurately reflected.