Ruling finds litigation reasonably necessary for joint will engaging German and BC law
The British Columbia Court of Appeal has ordered an estate to pay all parties’ reasonable indemnity costs in a proceeding that reasonably required litigation to determine the validity of a 1995 will, given its content and the surrounding circumstances.
In Aulinger v. Oda, 2026 BCCA 140, Mr. and Ms. Siebert made a handwritten joint will in Germany in 1995. Ms. Siebert made another will in 2019, then died later that year. Mr. Siebert passed away in 2022.
Ms. Siebert’s mother, represented by the appellant, was the only living beneficiary under the 1995 will. The respondent asserted an entitlement to Mr. Siebert’s estate through their marriage‑like relationship for two years before his death.
A chambers judge of the British Columbia Supreme Court determined that Ms. Siebert’s 2019 will revoked the testamentary dispositions in the 1995 joint will.
1995 will found valid
Last Jan. 16, the British Columbia Court of Appeal allowed the appeal and deemed the 1995 will valid and admissible into probate on proof in solemn form. Thus, Ms. Siebert’s mother would recover Mr. Siebert’s property in BC, subject to the respondent’s potential wills variation claim.
The respondent applied for directions concerning costs. She wanted the estate to pay the reasonable indemnity costs of all parties because Mr. Siebert’s conduct as the will‑maker drew them into the litigation.
The appellant countered that there should be no appeal cost order. Alternatively, the appellant sought reasonable indemnity costs.
Cost order
Agreeing with the respondent in its Apr. 4 supplementary reasons, the Court of Appeal for British Columbia ordered Mr. Siebert’s estate to pay both parties’ reasonable indemnity costs.
First, the appeal court disagreed with the appellant’s preliminary objection that the parties had not addressed costs at the appeal. The appeal court found Laidlaw v. Couturier, 2010 BCCA 59, cited by the appellant, inapplicable. The appeal court noted that Laidlaw was not an estate matter.
The appeal court considered this a clear case in which litigation was reasonably necessary to rule on the validity of the 1995 will. The appeal court held that the respondent appropriately requested directions under r. 40 of the Court of Appeal Rules, B.C. Reg 120/2022.
The appeal court explained that the 1995 joint will was not professionally drafted and that joint wills in general were uncommon. The appeal court added that the probate application, which involved unusual circumstances, entailed a consideration of German law and BC law.
The appeal court said Mr. Siebert could have avoided these difficulties if he had pursued legal advice and made another will confirming his testamentary intentions in the 27 years preceding his death in 2022, especially after Ms. Siebert passed away in 2019.
Second, the appeal court rejected the appellant’s argument that the respondent did not establish that she was an estate beneficiary.
The appeal court noted that the respondent – who did not yet have an opportunity to prove her status as a spouse at the time of Mr. Siebert’s death under s. 2(1)(b) of BC’s Wills, Estates and Succession Act, 2009 (WESA) – could only seek to vary the 1995 will as a spouse once admitted to probate under s. 61(1) of the WESA.
The appeal court found it too late to dispute the respondent’s standing. The appeal court pointed out that the appellant had previously failed to challenge such standing before the BC Supreme Court and the appeal court.
