By Polly Storey and Alec Kobetitch

In British Columbia, a will may be proved as valid if (1) it was executed in accordance with the formal requirements set out in the Wills, Estates and Succession Act, SBC 2009, c 13 (“WESA”); and (2) it is substantively valid, meaning that the will-maker had testamentary capacity, knew and approved the contents, and was not subject to undue influence. The burden of proving substantive validity of a will depends, in part, on whether or not a will was made in “suspicious circumstances”.

In Kroeger v. Bush Estate, 2026 BCCA 16 (“Kroeger”), Justice Fenlon, for the Court, had the opportunity to consider the evidence necessary to ground suspicious circumstances and to support that a will-maker knew and approved of the contents of their will.

Background

In 2001, Mrs. Bush executed a will (the “2001 Will”). By her 2001 Will, Mrs. Bush provided her estate to her husband, if he survived her. If Mr. Bush died before his wife, Mrs. Bush left her personal belongings to her surviving sisters, provided $1,000 to her church, and divided the residue of her estate equally amongst her 18 nieces and nephews.

In 2017, Mr. Bush began exhibiting signs of dementia and entered a care home. The couple granted powers of attorney to their niece, Ms. Rodrigues, and to Ms. Rodrigues’ brother, so that they could assist in managing the Bushes’ financial affairs.

In 2018, Mr. Bush died.

A New Will for Mrs. Bush

A few months after Mr. Bush’ death, Ms. Rodrigues contacted the couple’s notary, Ms. Manvell. Ms. Rodrigues asked Ms. Manvell to prepare a new will for Mrs. Bush. Ms. Rodrigues delivered to the notary a copy of the 2001 Will and a handwritten list of changes to be made. The list of changes was written by Ms. Rodrigues, but was signed by Mrs. Bush.

Ms. Manvell drafted a new will for Mrs. Bush based on the instructions received from Ms. Rodrigues (the “2018 Will”). Prior to drafting the 2018 Will, Ms. Manvell did not speak to Mrs. Bush or otherwise confirm the instructions with Mrs. Bush.

The changes to the 2001 Will were significant. Instead of the residue being split equally amongst Mrs. Bush’ 18 nieces and nephews,

1. The 2018 Will directed that $5,000 be provided to each of the nieces and nephews except for Ms. Rodrigues and her siblings.
2. The 2018 Will directed that Ms. Rodrigues and her three siblings share the residue of Mrs. Bush’ estate.

The result was that rather than each of the 18 nieces and nephews receiving approximately $275,000, as was the case under the 2001 Will, 14 would receive $5,000 whereas Ms. Rodrigues and her siblings would now receive almost $1.2M each.

Mrs. Bush died in 2021. Following her death, one of Mrs. Bush’ nieces, Mrs. Kroeger, filed a notice of dispute challenging the validity of the 2018 Will.

The Chambers Decision: Bush Estate (Re), 2024 BCSC 375

As a result of Mrs. Kroeger’s challenge to the 2018 Will, Ms. Rodrigues applied to prove the 2018 Will in solemn form. Ms. Rodrigues relied on a 3-paragraph affidavit from the notary, Ms. Manvell. The totality of Ms. Manvell’s affidavit evidence was that (1) the 2018 Will was executed in compliance with the formal requirements of the WESA, and without anyone other than Ms. Manvell and her executive director being present; and (2) Ms. Manvell considered that the Deceased was capable and knew and approved the contents of the 2018 Will.

The judge held that Ms. Manvell’s affidavit was not sufficient to allow him to decide the issues, and ordered that Ms. Manvell be cross-examined on her affidavit.

Following Ms. Manvell’s cross-examination and further submissions from the parties, the judge concluded that the 2018 Will was valid. The judge found that there was the 2018 Will had been made by Mrs. Bush free of any undue influence or suspicious circumstances, and that Mrs. Bush knew and approved the contents of the 2018 Will. He declared the 2018 Will proved in solemn form.

Mrs. Kroeger appealed.

The Court of Appeal Decision: Kroeger v. Bush Estate, 2026 BCCA 16

Mrs. Kroeger argued that the judge had erred in numerous respects, which the Court reframed as follows:

1. Did the judge err in concluding that there were no suspicious circumstances?
2. Did the judge err in concluding that Mrs. Bush had sufficient knowledge of the extent and value of her estate when she executed the 2018 Will?

Suspicious Circumstances

Justice Fenlon noted that Mrs. Kroeger had identified a number of suspicious circumstances regarding the making of the 2018 Will:

1. The 2018 Will was a marked departure from the 2001 Will, which had indicated an intention by Mrs. Bush to benefit her nieces and nephews equally;
2. There was no explanation regarding how Mrs. Bush came to the decision to change her will. For her part, Ms. Rodrigues said only that she and her siblings lived close to the Bushes’ home such that they had more frequent contact with them, particularly in their later years;
3. Ms. Rodrigues was instrumental in preparing the 2018 Will. It was Ms. Rodrigues (a) who contacted Ms. Manvell; (b) who wrote out the list of changes to be made to the 2001 Will; (c) who provided all instructions to Ms. Manvell; (d) who arranged the appointment; and (e) who drove Mrs. Bush to the appointment to sign the 2018 Will;
4. The changes to the 2001 Will significantly benefitted Ms. Rodrigues and her siblings; and
5. When Ms. Rodrigues first applied to probate the 2018 Will, she asserted that she was unaware of the 2001 Will, despite having provided it to a copy to Ms. Manvell.

Notwithstanding these facts, the judge considered that there were no suspicious circumstances regarding the making of the 2018 Will:

[32]      I find nothing suspicious in the fact that Ms. Rodrigues was the primary liaison in the drafting and execution of the 2018 will. Mrs. Bush did not have a computer, let alone an email account. It made perfect sense for Ms. Rodrigues to make the initial communications with Ms. Manvell, and forward the annotated 2001 will with the changes requested by Mrs. Bush. Indeed, that is generally why one provides a power of attorney, to assist in day-to-day transactions, as well as important transactions such as a will revision.

…

[34]      Further, Ms. Rodrigues’s practical instruction with respect to the mechanics of the will does not represent a usurpation of Mrs. Bush’s testamentary powers. Again, such technical decisions fall within the reasonable role of a person entrusted with a power of attorney. Indeed, Ms. Rodrigues’s professional designation as a CPA, and her ability to assist Mrs. Bush with tax matters, is likely one reason her aunt named her as her attorney.

[35]      I return to the frequently cited phrase in the jurisprudence: that the party contesting a will must raise more than a “miasma of suspicion.”  I am satisfied that the respondents have not raised even a miasma of suspicion. Even if they had, such a miasma has been more than adequately and, indeed, strongly dissipated and evaporated by the affirmative evidence of Mrs. Bush’s testamentary capacity, and the lack of any compelling suspicious circumstances surrounding the drafting and execution of the 2018 will.

The Court of Appeal disagreed.

Justice Fenlon noted that the issue was not only that Ms. Rodrigues was involved in the preparation of the 2018 from a logistical perspective. The issue was Ms. Rodrigues’ involvement in combination with her role as (1) a person in a position of trust, being Mrs. Bush’ power of attorney; and (2) a person who benefitted significantly from the changes made to the 2001 Will. Further, regarding Ms. Rodrigues having been involved in decision with respect to executor compensation, the issue was that Ms. Rodrigues had instructed Ms. Manvell on this point without any involvement from Mrs. Bush.

The Court affirmed that in considering whether suspicious circumstances exist, a party challenging a will does not need to prove that fraud or undue influence occurred. A challenger only needs to point to some evidence that, if accepted, would tend to undermine knowledge and approval or capacity. If so, the presumption of validity will not apply, and the person seeking to prove the will bears the burden of establishing that the will-maker’s capacity, knowledge, and approval.

Justice Fenlon held that Mrs. Kroeger had met this burden. Suspicious circumstances existed regarding the 2018 Will.

The Court went on to consider whether the evidence established that Mrs. Bush had capacity, knowledge, and approval regarding the 2018 Will.

Capacity, Knowledge, and Approval

While the Court of Appeal agreed with the judge’s assessment that Mrs. Bush had the mental acuity to make a will, based on there being evidence from two doctors regarding Mrs. Bush’ mental capacity, Justice Fenlon held that the judge had erred in finding that Mrs. Bush knew and approved the contents of the 2018 Will.

In particular, the evidence did not establish that Mrs. Bush appreciated the magnitude of her estate and, as a result, the effect of dividing the residue of her estate equally amongst only Ms. Rodrigues and her siblings:

1. It is the will-maker’s knowledge of the assets at the time the will was made which matters. Here, there was only evidence of Mrs. Bush’ past knowledge of her finances.
2. A will-maker must be aware of the approximate value of the residue of their estate at the time the will is executed. Here, Ms. Manvell’s evidence was that:

1. she did not discuss with Mrs. Bush the magnitude of Mrs. Bush’ estate or the size of the residue being left to Ms. Rodrigues and her siblings;
2. she “felt” Mrs. Bush knew what her assets were based on past real estate transactions; and
3. it was not her practice to discuss the extent of a will-maker’s assets with them.

Evidence that Mrs. Bush had written cheques, done her own banking, and moved her accounts to another branch was not sufficient to establish that Mrs. Bush was aware of the magnitude of her assets.

The Court concluded that Ms. Rodrigues had not met her burden of establishing that Mrs. Bush understood the magnitude of her estate, or that Mrs. Bush knew the effect of the changes being made to her 2001 Will.

In the result, the Court declared that the 2018 Will was invalid, and ordered that Mrs. Bush’ estate be distributed in accordance with the 2001 Will.

Key Takeaways

Kroeger offers important takeaways for both estate planners and litigators.

On the planning side, Kroeger illustrates the care that must be taken when an interested party is involved in the estate planning process. Drafting lawyers should obtain instructions directly from their clients, not defer to instructions provided by someone else on the client’s behalf, particularly when that person stands to benefit under the will at issue. Lawyers must also take care to confirm that the client understands their assets and the approximate value of their estate at the time of making the will, and appreciates how that value is being distributed under the will.

On the litigation side, Kroeger provides a clear analysis regarding the burden of proof in will validity cases and the evidence necessary to establish knowledge and approval. It is also an example of hybrid procedures being invoked (here, cross-examination of Ms. Manvell on her affidavit). While proof in solemn form applications are presumptively decided summarily based on affidavit evidence, Kroeger is an example of hybrid procedures being used to obtain the evidence necessary to properly decide issues without the cost and time associated with a full trial.

For assistance with your Estate, Trust, Elder Law, or Appeal matters, please contact Polly Storey or another member of Clark Wilson LLP’s Estates & Trusts Practice Group or Estates & Trusts Opinions and Appeals Group.