Trevor Todd and Jackson Todd have in excess of 65 years combined experience in resolving estate disputes
In Hendrickson estate 2026 BCSC 1058 the court utilized S59 WESA to ” rectify” a draft mirror will prepared during Ms Hendrickson’s life and then rectify it by substituting her name for her former spouse who they had reconciled and vice versa throughout.
They met with a lawyer who made extensive notes showing that they considered each other to be spouses. Some further emails were exchanged with the lawyer and clients and the lawyer then sent them draft wills After a further delay updated draft wills were provided and a meeting was asked to be set up to sign the wills.
The problem was that Ms Hendricks draft will named her spouse as the testator and Ms Hendrickson as the executor and residual beneficiary when the obvious intention for her will was the opposite. The drafting lawyer made an error in the drafting.
M. Hendrickson died before her will could be signed .The lawyers office at the request of the funeral home drafted a “post death draft” in a mirrored version with Ms. Hendrickson identified as the testator and her spouse designated as the executor and residual beneficiary.
The spouse then sought the post death draft to be declared as representing her last testamentary intentions and ordered to be effective as though it had been made in accordance with the terms of WESA.
The court initially looked at curing the unsigned will under S. 58 WESA but found that the “record, document or writing” made after death cannot be included within the scope of S.58 WESA despite S. 58 does not explicitly limit the records, documents or writings to those created during the testator’s lifetime.
The court stated there is no real difference between a court creating a will after death from what is known of the deceased’s testamentary intentions and a lawyer doing so and then asking for the court to bless the result, but part of the threshold under S 58 is whether the document is authentic. An authentic document must date to the life of the deceased.
The question therefore arose whether the June Draft can be rectified, so that this is fixed. If it can, then it could be ordered effective without the legal obstacle I have identified for the Post-Death
. Section 59(1) states as follows:
On application for rectification of a will, the court, sitting as a court of construction or as a court of probate, may order that the will be rectified if the court determines that the will fails to carry out the will-maker’s intentions because of
(a) an error arising from an accidental slip or omission,
(b) a misunderstanding of the will-maker’s instructions, or
(c) a failure to carry out the will-maker’s instructions. [52] “Failure to carry out the will-maker’s instructions” need not mean a culpable failure.
In my view, this is a relatively easy case for rectification under s. 59(1)(c). The June Draft failed to carry out the will-maker’s intentions because of firm policy in the context of mirror wills still in development. This fits within the meaning of s. 59(1)(c). [53] With this rectification, I am persuaded that the June Draft is a document that represents the testamentary intentions of Ms. Henriksen
. Conclusion and Order
I have therefore declared that the June Draft, as modified in accordance with the detailed order on file, represents the testamentary intentions of Ms. Henriksen and should be made fully effective as though it had been made as her will.
