Overview

In estate litigation, the validity of a will often hinges on whether the testator truly understood what they were signing, particularly when the resulting distribution of assets differs significantly from previous versions. The recent decision by the Court of Appeal for British Columbia in Kroeger v. Bush Estate, 2026 BCCA 16, serves as a stark reminder of the rigorous standards applied when a beneficiary is instrumental in creating the will.

Case Background and Facts

The dispute centered on the estate of Helen Bush, who passed away in 2021 at the age of 92. Her estate was valued at approximately $5 million. The appellant, Irene Kroeger, was the deceased's sister, while the respondent, Sandra Anne Rodrigues, was the deceased's niece and the executrix of the estate.

The core conflict arose from a dramatic change in Helen's testamentary intentions. Under a previous will executed in 2001, Helen had left the residue of her estate equally to her 18 nieces and nephews. Based on the estate's value, this would have resulted in roughly $275,000 for each beneficiary.

However, in November 2018, shortly after her husband's death, Helen executed a new will. This 2018 document drastically altered the distribution scheme. It left only $5,000 specific bequests to 14 of the nieces and nephews. The residue was then divided exclusively among the respondent, Ms. Rodrigues, and her three siblings. This change meant Ms. Rodrigues and her siblings would each receive nearly $1.2 million, while their cousins received a fraction of that amount.

Crucially, Ms. Rodrigues held a power of attorney for Helen. She wrote out the list of changes for the new will, provided the instructions to the notary, and drove her aunt to the appointment. The notary, Ms. Manvell, drafted the will based on these instructions without confirming them privately with Helen beforehand.

The Court's Decision and Reasoning

The trial judge initially upheld the 2018 will, finding no suspicious circumstances. However, the Court of Appeal, led by Madam Justice Fenlon, overturned this decision, declaring the 2018 will invalid and restoring the 2001 will.

Suspicious Circumstances

The Court of Appeal found that the lower court erred by failing to recognize clear suspicious circumstances. The law presumes a will is valid if it is properly executed. However, this presumption is rebutted if there are suspicious circumstances surrounding the preparation of the will, calling into question the testator's capacity or their knowledge and approval of the contents.

Justice Fenlon noted that Ms. Rodrigues was instrumental in the preparation of the will while standing in a position of trust and benefiting significantly from the changes. The Court cited Vout v. Hay, noting that when a party prepares a will under which they take a benefit, it excites the suspicion of the court. The lower judge had focused too much on the logistics of the situation—such as Helen lacking email access—rather than the substantive issue of a beneficiary drafting their own windfall.

Knowledge and Approval of the Residue

Once suspicious circumstances were established, the burden of proof shifted to Ms. Rodrigues to prove that Helen knew and approved of the will's contents. This is where the respondent's case failed.

For a will to be valid, the testator must appreciate the extent of the property of which they are disposing. The Court relied on the principle established in Russell v. Fraser regarding the magnitude of the residue. It is not enough for a testator to know they have assets; they must understand the approximate value of what they are giving away.

The notary, Ms. Manvell, testified that she did not discuss the specific value of the assets with Helen. She admitted it was not her practice to delve into such details. Consequently, there was no evidence that Helen understood that by signing the 2018 will, she was shifting millions of dollars to four specific relatives while effectively disinheriting the rest. As Justice Fenlon wrote, the evidence was not capable of establishing that the deceased understood the value of her estate and the magnitude of the residue.

Implications for British Columbia Law

Kroeger v. Bush Estate reinforces the protective nature of probate law in British Columbia. It clarifies that the threshold for suspicious circumstances is not necessarily about finding fraud or undue influence, but about the process of creating the will. If a beneficiary is involved in drafting the instructions, the court will require strict proof that the testator fully understood the financial implications of the document.

Furthermore, this decision places a heavier burden on solicitors and notaries. It highlights that a general assessment of capacity is insufficient. Legal professionals drafting wills must ensure the testator has a realistic grasp of their net worth, especially when dealing with the residue of an estate.

Practical Advice

For those involved in estate planning or litigation, this case offers several takeaways:

First, beneficiaries should never be the ones to draft will instructions or act as the primary liaison with the lawyer or notary, especially if they are receiving a larger share than others. Such involvement almost guarantees a finding of suspicious circumstances, shifting the burden of proof against the will.

Second, testators should ensure their legal counsel discusses the approximate dollar value of their estate during the drafting process. If the will leaves the residue to specific people, the testator needs to know if that residue is worth $50,000 or $5 million to demonstrate true knowledge and approval.

Finally, for legal professionals, this judgment serves as a precedent that failing to inquire about the value of assets can be fatal to the validity of the will. Notes confirming that the testator understood the magnitude of their bequest are essential defenses against future challenges.