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What can go wrong when a couple signs a single document together as their “joint Will”? The BC Court of Appeal’s decision in Aulinger v. Oda, 2026 BCCA 13, highlights the problems that can arise in such cases.
Defining the Joint Will
As confirmed in the Aulinger decision, a Joint Will is essentially two separate Wills, despite that the joint Will was prepared as a single document with all terms applying to both Will-makers.
In the lower court decision of Siebert Estate (Re), 2025 BCSC 617, the chambers judge erroneously believed that once the wife revoked her participation by making a new Will in 2019, the entire 1995 document was cancelled. The Court of Appeal corrected this, ruling that the husband’s portion remained active because he had not personally revoked it.
Joint vs. Mutual Wills
It is vital to distinguish a Joint Will from a Mutual Will:
- Joint Will: A single document containing two Wills. Either person can change their mind at any time without the other’s permission.
- Mutual Will: A joint Will accompanied by a binding legal contract where both parties promise never to change the Will without the other’s consent.
In Aulinger v. Oda, there was no evidence of a Mutual Will contract. This meant that while the wife was free to change her plan (which she did by way of a 2019 Will), the husband remained bound by the 1995 document until he took appropriate steps to revoke or change it.
The “Revocation Gap”
Under Section 55 of the Wills, Estates and Succession Act, a Will is only revoked by making a new Will, a written revocation, or the physical destruction of the original. In this case, a “revocation gap” was created: one spouse updated their plan, but the other did not. This left a decades-old document to govern an estate in a completely different stage of life.
The Estate Planning & Litigation group at LK Law understands the technical nuances of joint estate plans. We help couples ensure their documents provide both the flexibility they need and the security they expect. Contact LK Law to Review Your Joint Will Today.
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.
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