Court rejects will written after death

A British Columbia court declined to endorse a will that was drafted after a woman’s death, but it did approve a corrected version of a mirror will that was drafted shortly before she died.

According to a recent decision by the Supreme Court of B.C., in late 2024, a couple — Krista Maria Henriksen and Awad Hussein Mohamed — visited an estate lawyer to draft their wills. The lawyer began by drafting mirror wills — essentially identical wills for a couple that names each other as executor.

The pair, who were married for 11 years, divorced in 2003. They soon reconciled and remained together after that, but they never remarried and never had children.

Before the wills could be finalized and signed, Henriksen died suddenly, in July 2025.

At the time, their lawyer was on vacation, and Mohamed needed a copy of Henriksen’s will in order to make her funeral arrangements.

So, the lawyer’s office provided Mohamed with a will for Henriksen, which was prepared after her death — mirroring the draft version of their wills that was created in June, which was in Mohamed’s name, with Henriksen as the executor.

Mohamed then asked the court to have that “post-death draft” of her will declared as her valid will, representing her testamentary intentions.

According to the court, this was the first case where it was asked to make an order under new estates legislation in B.C. for a document created after death.

While the judge presiding over the case concluded that the post-death draft did represent Henriksen’s testamentary intentions, they found that the legislation requires the court to find a “record, document, writing or marking” that spells out those intentions — and that a document created after death can’t meet that test.

“… in my view, a draft created after death out of the oral instructions of the deceased would not, in the relevant sense, be a record, document, writing or marking,” the judge said.

As a result, the judge declared that they could not endorse the draft will created after Henriksen’s death.

Instead, the judge found that a draft that was written before her death — the mirror will, which names Mohamed as testator and Henriksen as executor — could be rectified and approved by the court.

“The [pre-death] draft failed to carry out the will-maker’s intentions because of firm policy in the context of mirror wills still in development. … With this rectification, I am persuaded that the [pre-death] draft is a document that represents the testamentary intentions of Ms. Henriksen,” the judge said.

And, the judge ordered that the corrected version of the pre-death draft “should be made fully effective as though it had been made as her will.”