When a Draft Will Isn’t Signed in Time: Can a Court Still Honour Your Wishes?

You’ve met with a lawyer. You’ve explained exactly who should get what. A Draft Will is sitting in your inbox, and a signing appointment is on the calendar. Then the unthinkable happens: you die before you can sign it.

In Canada, a will generally has to be signed and witnessed to be valid. So what happens to an estate when the lawyer knows precisely what the person wanted, but the paperwork was never finished?

A 2026 British Columbia Court tackled exactly this situation. The answer is more nuanced than a simple yes or no, and it holds lessons for anyone who has been putting off signing their Draft Will.
 

What happened in Henriksen Estate

Ms. Henriksen and her long-time partner, Awad Mohamed, met with an estate lawyer in January 2025. They wanted “mirror Wills”: each would leave everything to the other, with backup beneficiaries. Ms. Henriksen’s will would differ in one respect: a gift of jewellery.

The lawyer usually finalized one version of a mirror Will before preparing the other. So the lawyer prepared the Draft Will in Mr. Mohamed’s name, with notes showing where Ms. Henriksen’s version would differ. An updated Draft Will went out on June 25, 2025, and a signing meeting was expected. Ms. Henriksen died suddenly on July 4, 2025, before either Will was signed.

After her death, Mr. Mohamed asked the law office to prepare Ms. Henriksen’s version of the Will, and then asked the court to recognize that new document as her Will. Her siblings, who could have inherited if the Will failed, were notified but did not take part.

The court made two key findings:

• A document created after death cannot be validated as a Will. Justice Morley held that allowing it would effectively let a lawyer, or a judge, write a Will for someone after they had died.
• But the pre-death draft could be fixed. The court found that the June draft, which Ms. Henriksen had received during her lifetime, failed to carry out her instructions only because it was in Mr. Mohamed’s name. Using the court’s power to rectify (correct) a Draft Will, the judge ordered the names swapped and declared that draft to be her Will.

The outcome honoured Ms. Henriksen’s clear intentions. But it depended on a fortunate fact: a detailed draft reflecting her wishes existed before she died. As legal commentators have noted, the application was unopposed, and whether this route would survive a contested challenge remains an open question.

What about Ontario?

Ontario courts can also save an imperfect Will, but unsigned Draft Wills face an uphill battle.

Since January 1, 2022, section 21.1 of Ontario’s Succession Law Reform Act has allowed the Superior Court to declare a document valid as a Will even if it wasn’t properly signed or witnessed. The person relying on the document must prove two things: that it is authentic, and that it records the deceased’s fixed and final intentions, not just preliminary instructions.

Courts have readily used this power to fix technical mistakes, such as a missing witness signature. Unsigned lawyer-prepared drafts are a different story. Ontario case law shows a clear pattern:

• Where the person actively approved the draft, it can succeed. In Grattan v. Grattan Estate, the deceased had reviewed the draft, emailed small edits to her lawyer, and died 15 days later. The court validated the unsigned Draft Will.
• Where there’s no proof the person adopted it, it fails. In Madhani v. Fast, 2025 ONSC 4100, the Will-maker died on the morning of the signing appointment. The court refused to validate the draft, finding no reliable evidence that it reflected the deceased’s final intentions.
• Long delays weigh against validation. Where a Draft Will sits unsigned for months or years despite reminders from the lawyer, courts tend to conclude the person hadn’t made up their mind.
• Digital-only drafts are uncertain. Ontario judges currently disagree on whether a document that exists only as an electronic file, such as a Word document on a lawyer’s computer, can be validated at all. Until the Court of Appeal settles the question, an unprinted draft carries extra risk.

Ontario courts also have a separate equitable power to rectify a Will when the drafter failed to carry out the Will-maker’s instructions. But as in B.C., that remedy is about correcting a document, not creating one from scratch.

When an unsigned will can’t be saved, the estate falls back on an earlier valid Will, if there is one, or on the province’s intestacy rules if there isn’t.

Intestacy rules follow a fixed formula based on family relationships, not on what the person actually wanted. That can produce results nobody intended:

• Unmarried partners may get nothing. In Ontario, a common-law partner has no automatic right to inherit on intestacy. B.C.’s rules are broader, but whether a partner qualifies as a “spouse” can itself become a dispute, as the commentary on Henriksen points out.
• Specific gifts disappear. A cherished piece of jewellery meant for a niece, or a donation to a charity, simply won’t happen.
• Distant relatives may inherit. Siblings, nieces and nephews can end up with an estate the person meant for someone else.

In some cases, the people who lost out may have a claim against the lawyer. Canadian courts have recognized that a lawyer who unreasonably delays preparing or arranging the signing of a Will can owe a duty to the intended beneficiaries. These claims depend heavily on the facts, and they are no substitute for a properly signed Will.

Lessons for anyone making a will

The single most important lesson from Henriksen is simple: a Will protects your family only once it is signed.

1. Don’t let a draft sit. Review it promptly, ask your questions, and book the signing as soon as you’re satisfied. Every week a draft sits unsigned is a week your wishes are unprotected.
2. Put your approval in writing. If you’re happy with a draft, tell your lawyer or will provider in an email. If you want changes, spell them out. A clear written trail can make a real difference if something happens before signing.
3. If you are seriously ill, move faster. Ask for an urgent signing, including at home or in hospital if needed.
4. Couples with mirror wills should sign together. Henriksen shows the risk when one partner’s Will is drafted ahead of the other’s. Make sure both versions are ready at the same time.
5. Keep an existing Will in place until the new one is signed. Don’t destroy an old Will just because a new one is in progress.
6. Print and sign properly. In Ontario, a Will must generally be signed in front of two witnesses who also sign. A digital draft on a computer is not a Will, and may not even be something a court can rescue.
7. Revisit your Will after big life events. Marriage, separation, a new relationship, children, grandchildren or a death in the family are all reasons to check that your Will still reflects your wishes.

The bottom line

Courts in B.C. and Ontario have real power to rescue a will that wasn’t properly signed, and Henriksen Estate shows judges will work hard to honour someone’s clear wishes. But that power has firm limits. A court can fix or validate a document that existed during your lifetime and reflected a final decision. It cannot write your Will for you after you’re gone.

The Henriksen family was fortunate that a detailed draft existed. Many families are not. The surest way to protect the people you love is to finish the job: review your Will, sign it properly, and keep it up to date.

At SmartWills, we make it easy for Canadians to create a clear, legally valid will and get it signed without delay, so your wishes are protected today, not someday.