Ruling says one testator’s 2019 will did not revoke other testator’s dispositions in 1995 will
The British Columbia Court of Appeal has allowed an appeal challenging a chambers judge’s finding that one testator’s will made in 2019 revoked the other testator’s testamentary dispositions in a will they jointly executed in 1995.
In Aulinger v. Oda, 2026 BCCA 13, Mr. and Ms. Siebert jointly made a will and signed it in Germany in 1995. Handwritten by Ms. Siebert, the will named her parents, Mr. and Ms. Steger, as the entire estate’s universal heirs upon the testators’ deaths.
In 2019, Ms. Siebert made another will and passed away. In 2022, Mr. Siebert died. The issue in this matter was the disposition of his estate.
On behalf of Ms. Steger, who would inherit land in BC under the 1995 will if it were admissible to probate, the appellant brought a claim to propound the will.
In April 2025, a chambers judge of the Supreme Court of British Columbia refused to admit the 1995 will to probate. He determined that Mr. Siebert died intestate. The judge found that the 1995 will:
- was formally valid under German law
- would be admissible to probate in BC, as long as the testators did not subsequently revoke it
- lacked any force or effect because Ms. Siebert’s 2019 will revoked all testamentary dispositions in the 1995 will
On appeal, the appellant alleged that:
- The judge misinterpreted and misunderstood the 1995 will’s legal nature
- The 1995 testamentary document – which contained Ms. Siebert’s and Mr. Siebert’s wills – was Mr. Siebert’s last will
- Ms. Siebert’s 2019 will could not legally revoke Mr. Siebert’s 1995 will
- Mr. Siebert did not die intestate
The respondent said she had a spousal relationship with Mr. Siebert before his death. She wanted to present fresh evidence tackling the 1995 will’s legal validity and effect under German law.
Opposing the appellant’s claim, the respondent argued that the judge understood the 1995 will’s legal nature, did not misinterpret it, and correctly chose not to consider it a joint will comprising two wills in a single document.
1995 will found admissible
The Court of Appeal for British Columbia allowed the appeal and dismissed the respondent’s application to adduce fresh evidence. The appeal court deemed the 1995 will admissible into probate on proof in solemn form.
The appeal court did not find it in the interests of justice to admit the proposed fresh evidence, which failed on two of the criteria included in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 SCR 759.
The appeal court ruled that Mr. Siebert had validly made the 1995 will and never revoked it. The appeal court added that the 1995 will remained in force and came into effect upon his death in 2022.
The appeal court held that the chambers judge misunderstood a joint will’s legal nature and made a palpable and overriding mistake in interpreting the 1995 will. The appeal court found that the judge’s interpretation failed to:
- approach the interpretive question as a search for testamentary intent
- weigh the surrounding circumstances, which supported the appellant’s interpretation
- consider the presumption against an intestacy
The appeal court also saw an error in the judge’s finding that the 2019 will revoked the 1995 will. The appeal court confirmed that the 1995 testamentary document was a joint will – comprising Ms. Siebert’s and Mr. Siebert’s wills – pursuant to the relevant jurisprudence.
According to the appeal court, only Mr. Siebert could revoke his 1995 will under BC law. The appeal court explained that Ms. Siebert’s 2019 will, made without Mr. Siebert’s participation, revoked her 1995 will but did not revoke his 1995 will.
The appeal court declined to interpret the joint will’s two wills as mutual wills with the makers’ agreement that neither would revoke it after the first had passed away.
