By Aaron Pearl and Mackenzie Do

Joint wills are not a common estate planning tool seen in British Columbia. A joint will is essentially a will made by two or more people contained in a single document. It is not surprising that these are a rare occurrence as they can invite obvious uncertainty and interpretation issues. In a recent decision, Aulinger v. Oda, 2026 BCCA 13, the British Columbia Court of Appeal had the opportunity to address joint wills, their distinction from mutual wills, and the issue of what happens when one of the makers of a joint will makes a subsequent will.

Background

The appeal involved a joint will made in Germany by Johannes and Daniela Siebert in 1995 (the “1995 Will”). The 1995 Will was handwritten and signed by both Daniela and Johannes. The 1995 Will was simple and contained no more than the following line:

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.

In 2019, Daniela was diagnosed with cancer, prompting her to make a will that year (the “2019 Will”). The 2019 Will was signed by Daniela and it named Johannes as the sole beneficiary of her estate. The 2019 Will states that it revokes any prior testamentary documents. Daniela died less than a month later.

In July 2022, Johannes contacted a lawyer for advice regarding his estate and they arranged a meeting for his estate planning. At this time, to Johannes’s knowledge, the 1995 Will was the only will that existed. However, he died in an accident just weeks before their meeting and left property in both British Columbia and Germany without making a new will.

The main issue in the proceedings was whether the 1995 Will as it related to Johannes’ estate was revoked by Daniela’s 2019 Will. A lawyer in Canada, Mr. Aulinger, brought the appeal on behalf of Daniela’s mother. If the Court of Appeal were to admit the 1995 Will to probate, Daniela’s mother would inherit Johannes’s estate. The application was opposed by Ms. Oda, a woman who claimed to have been in a marriage-like relationship with Johannes in the final years of his life, after Daniela passed away.

The Chambers Judge’s Decision

The Chambers Judge concluded that the 1995 Will was valid under German law and admissible to probate in British Columbia because it met the formal requirements for making a will in Germany. The Chambers Judge also determined that the issue of revocation was governed by British Columbia law. Neither of these findings were challenged on appeal.

The appeal arose from the Chambers Judge’s conclusion that the 1995 Will had been revoked in its entirety when Daniela made the 2019 Will, meaning Johannes died intestate under British Columbia law.

The Appeal

Mr. Aulinger argued that the Chambers Judge misinterpreted the 1995 Will, a joint will, contending that it comprised two separate wills – one made by Daniela and the other by Johannes. On that view, Daniela could not have revoked Johannes’s will when she later made the 2019 Will. Accordingly, Mr. Aulinger submitted that the Chambers Judge erred in concluding that Johannes died intestate.

Ms. Oda, by contrast, maintained that the Chambers Judge’s interpretation of the 1995 Will was correct.

Did the Chambers Judge Err in His Interpretation of the 1995 Will?

First and foremost, the Court of Appeal considered the true legal nature of a joint will. That is, a joint will is in law two separate wills, and either one of them may be revoked without any effect on the other. This is in contrast to a “mutual will”, which are wills made by two or more will-makers which confer reciprocal benefits. The Court of Appeal proceeded to interpret the 1995 Will, and at the heart of the interpretive issue were the words “our death”. The Court of Appeal agreed with Mr. Aulinger’s interpretation of these words, specifically, that Daniela and Johannes intended to bequest their entire estate upon the death of both of them, no matter the interval between the first death and the second death.

The Court of Appeal observed that the 1995 Will did not say what was to be done if either Daniela or Johannes died before the other. Nothing in the 1995 Will, nor in the surrounding circumstances, suggested that the married couple contemplated revocation of the 1995 Will at all. In fact, in such a situation, the words “our entire estate” suggested that the property of the spouse who died first would be inherited by the other spouse.

The Court of Appeal also noted that the Chambers Judge did not consider the presumption against intestacy. This rule states that when someone makes a will, it is presumed that they did not intend to die intestate, and courts should interpret the will in a way that avoids intestacy.

Overall, the Court of Appeal found Mr. Aulinger’s interpretation to be the most sensible. Daniela and Johannes were not concerned with what would happen if one of them died before the other. There was also nothing to suggest that they were contemplating what would happen if one of them changed their minds. Instead, the 1995 Will was meant to deal with the final distribution of their estate after both of them died. It was clear that the couple had a close relationship with Daniela’s parents, and that Johannes had no obvious heirs of his own.

Did the Chambers Judge Err in Holding that the 1995 Will was Revoked by the 2019 Will?

Given that a joint will is legally two separate wills, the Court of Appeal concluded that only Johannes could revoke his own will. On that basis, when Daniela made the 2019 Will, she revoked only her own will from the joint 1995 Will, and not Johannes’s. His will therefore remained valid and took effect when he died in 2022.

In conclusion, the Court of Appeal admitted the 1995 Will into probate on proof in solemn form.

Key Takeaway

Aulinger v. Oda serves as a reminder that while joint wills may be used as an estate planning tool for couples, they invite uncertainty and can give rise to disputes. Married couples and common-law partners should be cautious if they choose to execute joint wills. A will that seems incredibly straightforward and simple can result in significant complexity, as it did in this case.

For more information regarding estate planning and litigation, please contact Aaron Pearl or another member of our Estates & Trusts group.