Ruling finds erroneous assessment of evidence of suspicious circumstances in replacing older will
The British Columbia Court of Appeal ordered an estate’s distribution under the testator’s 2001 will, given the evidence of suspicious circumstances in the executor’s role in assisting with the preparation of a 2018 will that benefited herself and her siblings.
Born in 1929, the testator involved in Kroeger v. Bush Estate, 2026 BCCA 16, married her husband when she was in her early 40s. While they had no children, they had 18 nieces and nephews, including the respondent executor.
In 2001, the testator made a will transferring her entire estate to her husband if she predeceased him. If his death came first, the will left her personal belongings to her sisters and $1,000 to her church, with the estate residue divided equally among her nieces and nephews, who would each get around $275,000.
The testator’s husband started showing signs of dementia and eventually moved to a care home. In 2017, the couple granted powers of attorney allowing the respondent and her brother to help manage their financial affairs.
In 2018, the testator’s husband died. At that time, his entire estate passed to his widow.
That November, the respondent asked a notary public, who had acted for the couple since 2006 and prepared their powers of attorney in 2017, to prepare the testator’s new will. The respondent sent a copy of the 2001 will and a list of significant changes, handwritten by her and signed by her aunt. The notary drafted the new will in line with the respondent’s instructions.
The 2018 will, which included a May 2015 codicil, removed the bequest to the testator’s sisters and made a $1,000 bequest to a close friend. The 2018 will also bequeathed $5,000 each to 14 of her nieces and nephews, except the respondent and her three siblings, who would divide the estate residue among themselves.
In 2021, the testator passed away at the age of 92. At the time of her death, her estate’s value was approximately $5 million. Thus, under the 2018 will, the respondent and her three siblings would receive nearly $1.2 million each upon dividing the estate residue among themselves.
In January 2024, a chambers judge of the Supreme Court of British Columbia accepted the 2018 will as valid. The appellant, who was one of the testator’s sisters, challenged this decision.
2018 will found invalid
The Court of Appeal for British Columbia determined that the appellant’s fresh evidence application failed on the first factor of the test for admitting new evidence in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 SCR 759. The appeal court explained that the appellant could have presented the proposed new evidence, which was available before trial, upon exercising diligence.
However, the appeal court allowed the appeal, set aside the chambers judge’s decision, and issued orders finding the 2018 will invalid and directing the estate’s distribution in line with the 2001 will and the May 2015 codicil.
First, the appeal court ruled that the judge made palpable and overriding errors in assessing the evidence of suspicious circumstances, including the respondent’s role in helping prepare a will that significantly benefited her and her siblings.
The appeal court acknowledged that the appellant met the applicable burden by identifying evidence tending to negate the testator’s knowledge and approval of the 2018 will. According to the appeal court, this evidence overturned the presumption of validity and shifted the burden to the respondent to prove her aunt’s testamentary capacity, knowledge, and approval.
Second, the appeal court held that the judge relied on evidence incapable of establishing that the testator sufficiently knew the extent and value of her estate and its residue when executing the 2018 will. The appeal court concluded that the respondent failed to meet the burden of proving the will in solemn form or establishing that her aunt understood the magnitude of her estate and its residue.
