Trevor Todd and Jackson Todd have over sixty combined years handling estate disputes
The Bc Court of Apeal in Aulinger v Oda 2026 BCCA 13 allowed an appeal based on the trial judge’s misunderstanding of the difference between Joint wills and mutual wills,. The trail judge treated them synonymously while they are in fact legally distinguishable.in 1995 Mr and Mrs Siebert together made a will in Germany that was handwritten and signed by both of them:
Testament
In case of our death, we, Daniela and Johannes Siebert, name Mr. Martin Steger and Ms. Gertrud Steger as universal heirs of our entire estate.
The named beneficiaries, Martin and Gertrud Steger, were Daniela Seibert’s parents.
The trail judge found that it was a valid German will and went on to find that the 1995 will was revoked by a further will made by Ms. Siebert in 2019. She died later in 2019 and Johannes Siebert in 2022. He found that as a result of Mrs Siebert revoking her 1995 that Mr. Sibert died intestate.
The Court of Appeal found this conclusion to be an error.
The judge erred in holding that the 1995 will was revoked by the 2019 will. The judge’s interpretation derives from an incorrect understanding of the legal nature of a joint will and does not approach the interpretive problem as a search for testamentary intent, consider the surrounding circumstances favouring the appellant’s interpretation, or have regard for the presumption against an intestacy. The 2019 will was only made by one testator and could not revoke the other testator’s prior testamentary dispositions.
THE LAW
The common law distinguishes joint wills and mutual wills. Canadian courts have ratified the following description of a joint will from Halsbury’s Laws of England, (4th ed. reissue, 1998) vol. 50, para.257
Joint wills. A joint will is a will made by two or more testators contained in a single document, duly executed by each testator, and disposing either of their separate properties or of their joint property. It is not, however, recognised in English law as a single will. It is in effect two or more wills; it operates on the death of each testator as his will disposing of his own separate property; …
Re Creelman, McIntyre v. Gushue (1956), 2 D.L.R. (2d) 494 at 498, 1956 CanLII 357 (N.S.S.C.); Benjamins v. Chartered Trust Company, [1965] S.C.R. 251 at 271, 1965 CanLII 7; Re Stanley Estate (1968), 69 D.L.R. (2d) 431 at 432–433, 1968 CanLII 594 (B.C.S.C.); Re Hnatiw, [1977] W.W.R. 764 at para. 3, 1976 CanLII 909 (S.K.Q.B.).
[24] Mutual wills are wills made by two or more testators that confer reciprocal benefits. Mutual wills may be contained in separate documents, or may be contained in a single joint document, in which case it is also a joint will: Halsbury’s at para. 258; James MacKenzie, Feeney’s Canadian Law of Wills (Fourth edition) (Toronto: LexisNexis) (looseleaf updated November, 2025 release 122) at 1.44.
[25] An agreement (which may be implied) not to revoke reciprocal dispositions is sometimes viewed as a defining feature of a mutual will and sometimes not: Robert Chambers, “Constructive Trusts in Canada” (1999) 37:1 Alta LR 173; compare Halsbury’s at para. 128, Feeney’s at 1.45. Whether or not such an agreement is a characteristic feature or whether the term “mutual will” can be used more broadly is not a question that has to be decided in this case. Where there is such an agreement then, prior to the death of one of the testators, the agreement is revocable, but unless revocation occurs, the death of one testator makes it binding on the survivor: Halsbury’s at para. 258.
[26] In the case of mutual wills contained in a joint will, the existence of an agreement not to revoke may be implied by the terms of the wills themselves: Re Johnson, 8 D.L.R. (2d) 221, 1957 CanLII 188 (S.K.C.A.) at paras. 15–16; Re Gillespie, [1969] 1 O.R. 585, 1968 CanLII 281. In the case of mutual wills contained in separate documents, extrinsic evidence is required to prove an agreement not to revoke.
[27] Equity’s answer to a survivor’s attempt to revoke a bequest contained in a mutual will that has become binding is the imposition of a constructive trust in favour of the originally intended beneficiary: University of Manitoba v. Sanderson Estate (1998), 47 B.C.L.R. (3d) 25 (C.A.) at paras. 46–59, 1998 CanLII 4328 [Sanderson Estate]. The trust is imposed on the survivor’s estate, after the death of the first to die. It does not invalidate the survivor’s new will, but prevents it from coming into full effect contrary to the terms of the agreement that accompanied the making of the mutual wills.
[28] Accordingly, joint wills and mutual wills are conceptually different. Joint wills are contained in a single document, and mutual wills need not be. Joint wills may but need not necessarily confer reciprocal benefits. A joint will is not a single will—it operates on the death of each testator as that testator’s will disposing of that testator’s own separate property. The revocation of a joint will by the testator who dies first is not a revocation of the joint will as it pertains to the surviving testator—it is only a revocation of the revoking testator’s will: WESA, s.55.
[29] The conceptual distinction between joint and mutual wills was not addressed in the Court below, and as noted, the judge considered the terms “mutual will” and “joint will” to be synonymous. Importantly, he received no assistance on the effect in law of the revocation of a joint will by the testator who dies first and, as will be seen, this led to an error material to his reasoning.
Will Interpetration
The essential principles of construction are pithily summarized in Brink v. Reeves Estate, 2025 BCCA 295 at para. 9, citing Killam at paras. 13 and 52 and Smith v. Smith Estate, 2010 BCCA 106 at paras. 18 and 28:
- The primary objective is to determine the testator’s intention;
- The will must be considered in its entirety;
- If there is no ambiguity on the face of the will it should be interpreted according to the language used (the “four corners approach”); and
- Only if there is ambiguity should the court resort to evidence of surrounding circumstances (the “armchair rule”).
[40] In this case, the entirety of the will is contained in a single sentence, repeated here for ease of reference:
In case of our death, we, Daniela and Johannes Siebert, name Mr. Martin Steger and Ms. Gertrud Steger as universal heirs of our entire estate.
[41] The interpretive issue concerns the reference to “our death”.
A notable feature of the 1995 will is that it provides only for the disposition of “our entire estate” in the event of “our death”. It does not say what is to be done if one of the makers dies before the other. The reference to “our entire estate” suggests an assumption that the property of one would be inherited by the other in the interim.
The appeal court concluded that in making the 2019 will in which Mr. Seibert did not participate, Ms. Siebert revoked her 1995 will, but she did not revoke Mr. Siebert’s 1995 will. It remained in force and came into effect upon his death in 2022.
