B.C. Court of Appeal Finds Suspicious Circumstances Where Beneficiary Involved in Preparation of Will

February 25, 2026

The B.C. Court of Appeal decision of Kroeger v. Bush Estate, 2026 BCCA 16 has attracted recent media attention, including coverage in the Vancouver Sun. The Court in Kroeger overturned a lower court decision and held that the involvement of a beneficiary in the preparation of a new will, which dramatically altered the distribution of an earlier will to their personal benefit, constituted a “suspicious circumstance.”  I recently wrote about suspicious circumstances arising in this context, and that post can be found here.

Background

Helen Bush died in 2021, leaving an estate valued at approximately $5 million. Under a 2001 will, the bulk of her estate would be divided equally amongst 18 nieces and nephews, with each receiving around $275,000.

In November 2018, Ms. Bush executed a new will. Under the 2018 will, 14 nieces and nephews would each receive $5,000, and the respondent executor, Sandra Rodrigues (a niece of Ms. Bush), and her three siblings would each receive around $1.2 million.

Ms. Rodrigues, an accountant, held a power of attorney for Ms. Bush, and had assisted her and her late husband with their financial affairs. After the death of Mr. Bush in 2018, Ms. Rodrigues contacted a notary (who had long acted for Ms. Bush) and provided her with a copy of the 2001 will and a list of changes to be made. The notary prepared the will without speaking first to Ms. Bush and did not review with Ms. Bush the extent of her estate assets (including what she had inherited from Mr. Bush upon his death in 2018). The notary gave evidence that she was satisfied Ms. Bush knew the extent of her estate based on her experience in dealing with her over the years. Questions the notary had about executor compensation were directed to Ms. Rodrigues and not Ms. Bush.

A sister and niece of the deceased challenged the 2018 will. The chambers judge found the 2018 will to be valid.

The Legal Framework –  Assessing Suspicious Circumstances and Validity of a Will 

In Kroeger, the Court of Appeal set out the step-by-step approach that should be followed by a court in assessing whether a will has been proven in solemn form:

  1. The party seeking to propound (rely upon) a will must prove on a balance of probabilities (more likely than not standard) that the will was executed in line with statutory requirements, that the will-maker had testamentary capacity, and that they knew and approved of the contents of their will;
  2. A duly executed will that was read over by a will-maker who appeared to understand it benefits from a rebuttable presumption of validity;
  3. The presumption of validity is rebutted where there is evidence of suspicious circumstances relating to the preparation of the will, testamentary capacity, or the free will of the testator (presence of coercion or fraud); and
  4. If suspicious circumstances are established, the burden shifts back to the propounder to prove testamentary capacity, knowledge and approval, and dispel the suspicious circumstances raised.

The party asserting suspicious circumstances must raise a “specific and focused” suspicion and show “some evidence, which if accepted, would tend to negative knowledge and approval or testamentary capacity.”  Undue influence, coercion, etc. do not need to be proven to rebut the presumption of validity.

Analysis – Suspicious Circumstances Established

The Court of Appeal held that the chambers judge erred in failing to find the presence of suspicious circumstances. In particular:

  • Rodrigues’ instrumental role in the preparation of the will while occupying a position of trust as power of attorney – including providing instructions to the notary without Ms. Bush’s involvement;
  • The significant benefit she and her siblings received under the new will; and
  • The marked departure from a longstanding testamentary plan benefitting all nieces and nephews equally.

The Court of Appeal noted that the above were well-recognized at law as hallmarks of suspicious circumstances; particularly the fiduciary beneficiary involved in the preparation of a will. The appellants did not need to prove actual nefarious conduct.

Knowledge and Approval: The Magnitude of the Estate

As suspicious circumstances were present, the burden of establishing the validity of the will fell on Ms. Rodrigues. The Court found that while testamentary capacity was not seriously at issue, the respondent failed to prove that Ms. Bush knew and approved of the contents of the 2018 will — particularly the magnitude of the residue she was leaving to Ms. Rodrigues and her siblings.

The notary acknowledged that she did not discuss the value of the estate or size of the residue with Ms. Bush. It is not enough to show that a testator was intelligent, generally aware of their finances, or historically involved in asset management. Positive proof that a testator was aware of the approximate value of their estate at the time the will was made is required.

The appeal was allowed and the 2018 will held invalid; the estate would be distributed in accordance with the 2001 will and a 2015 codicil.

Takeaways

  • Beneficiary involvement in will-preparation, particularly in a fiduciary role like a power of attorney, will attract scrutiny of a court and remains a powerful suspicious circumstance.
  • A party asserting the presence of suspicious circumstances only needs to show ‘some evidence,’ to shift the burden of proof.
  • Notaries and lawyers should discuss with a will-maker the extent of their estate assets at the time the will is made – relying on past financial knowledge or financial sophistication may not suffice.

B.C. Case Comment – First Judicial Consideration of WESA s. 33: Retention of the Spousal Home on Intestacy

February 16, 2026

What happens when a spouse dies without a will, the family home is the only estate asset, and the surviving spouse cannot afford to buy out the children’s interests under the intestacy scheme?

In Re Boisvert Estate, 2026 BCSC 195, the British Columbia Supreme Court considered, for the first time, an application under s. 33 of the Wills, Estate and Succession Act (“WESA”). The decision is noteworthy not only because it fills a jurisprudential gap, but because it offers meaningful guidance on how courts are expected to exercise the broad discretion built into sections 31–35 of WESA.

Background

Mr. Amies and the deceased, Ms. Boisvert, lived together in a marriage-like relationship for approximately 25 years in a home owned solely by Ms. Boisvert in Smithers, B.C. Ms. Boisvert died intestate in 2022. Her estate consisted almost entirely of the Smithers home, valued at approximately $600,000.

Ms. Boisvert had two adult children from a prior relationship.

Following Ms. Boisvert’s death, Mr. Amies continued to live in the spousal home and in 2025 brought an application under s. 33 of WESA seeking an order vesting the home in his name. The application was opposed by the deceased’s daughter, Ms. Goddard, who was also the administrator of the estate.

At the time of the application, Mr. Amies was 62 years old. The evidence established that he was a man of modest means, earning approximately $20,000 per year, and holding an RRSP of roughly $100,000. The Court accepted that he and Ms. Boisvert had not been financially well off, that Mr. Amies had been a loyal partner, providing financial and health support to Ms. Boisvert for many years.

The Statutory Context

Where a person dies intestate leaving a surviving spouse and descendant children Part 3 of WESA governs the distribution of the estate.  Section 21(1) provides that the surviving spouse is entitled to a preferential share of $150,000, plus 50% of the residue of the estate, with the remaining residue divided equally among the descendant children.

Where the estate includes a spousal home, s. 27 permits the surviving spouse to purchase the interests of the descendants in that home, subject to court approval where agreement cannot be reached.

Sections 31 to 35, and in particular s. 33, create an alternative mechanism where a purchase under s. 27 may not be feasible. Section 33 authorizes the court to make an order where certain criteria are satisfied, namely:

  • the spouse was ordinarily resident in the home;
  • the estate assets are insufficient to satisfy the interests of both the spouse and the descendants without a sale of the home;
  • the spouse would suffer significant financial hardship if required to purchase the descendants’ interests;
  • there is a greater prejudice imposed on the surviving spouse in being unable to reside in the home then on the descendants in having to wait for their share of the estate; and
  • the spouse had resided in the home and/or community for a sufficient period of time to ‘establish a connection’

If a spouse meets the above criteria a court can make a number of specified orders subject to any terms or conditions it considers appropriate:

  • Vesting order – the court can vest the deceased’s interest in the spousal home in the surviving spouse giving them technical ownership;
  • Specify the amount of money a surviving spouse must pay descendants for their interest in the estate;
  • Convert any underpaid interest of the descendants into a registrable charge against title to the surviving spouse’ interest in the property;
  • Determine an interest rate the descendants are entitled to for their registrable charge;
  • Determine the value of the charge to include the principal amount owing and the expected value of the future interest that will be earned from the court setting an interest rate on the registrable charge.

In short: the court can let the spouse keep the home while ensuring descendants still have a secured claim for their share.

Where an order is made under s. 33, ss. 34 and 35 permit the court to convert the descendants’ interests into a registrable charge against the property, enforceable as if the descendants were mortgagees, and payable on terms fixed by the court.

Statutory Interpretation and Novelty

Section 33 of WESA has not previously been considered by a British Columbia court, and the Court in Boisvert noted that there is no equivalent provision elsewhere in Canada. Under previous wills and estates legislation (the Estate Administration Act) a surviving spouse was granted a life estate in a spousal home by default. WESA replaced that regime with a discretionary scheme that requires the Court to balance competing interests of spouses and descendant beneficiaries (particularly children).

In the absence of precedent, the Court turned to purposive interpretation. The Court relied on Ministry of Justice materials explaining the relevant provisions of WESA and on Hansard to understand the legislative intent behind s. 33. While recognizing the limited weight of such sources, the Court concluded that the legislature deliberately moved away from automatic life estates in favour of a flexible, court-supervised balancing exercise. The legislature through WESA was recognizing a surviving spouse’s potential need to remain in a home while protecting descendants’ inheritances. Permitting a registrable charge allowed descendants’ a secured financial interest and the section gave courts the flexibility needed to balance their rights with spousal hardship.

The Balancing Exercise

Applying s. 21 of WESA, the Court found that Mr. Amies’ intestate entitlement was $375,000, while each child was entitled to $112,500. The estate could not satisfy these interests without selling the home.

The Court held that Mr. Amies met the statutory criteria under s. 33. Mr. Amies was not required to exhaust his RRSPs to remain in the home, consistent with the legislative intent reflected in the WESA materials

The Court ordered that the estate’s interest in the home be vested in Mr. Amies, subject to a registrable charge in favour of the children for $225,000, accruing interest under the Court Order Interest Act. The charge was structured to become payable on the earliest of several triggering events, including 24 months from judgment, 12 months Mr. Amies’ death, 12 months from Mr. Amies ceasing to reside at the property, or immediately upon sale of the property.

The 24-month grace period is particularly significant. It reflects the Court’s view that s. 33 permits tailored remedies, including delayed enforceability, rather than immediate realization by descendants.

Why This Decision Matters

Boisvert confirms that s. 33 is not an exceptional or theoretical provision—it is a practical tool intended to be used. The decision provides a roadmap for future cases: courts will engage in a fact-specific balancing exercise, rely on purposive interpretation, and craft bespoke remedies that protect both the surviving spouse and the descendants’ financial interests.

For practitioners, the case underscores that s. 33 applications are not all-or-nothing propositions. The real work lies in how the charge is structured—and Boisvert makes clear that courts are prepared to be creative.

 

Case Comment – Joint Wills in British Columbia

February 9, 2026

In recent decision of Aulinger v. Oda, 2026 BCCA 13, the B.C. Court of Appeal discusses the legal nature of joint wills and mutual wills in B.C. and the effect of a will-maker’s revocation of a joint will on other will-makers.

Background

Johannes and Daniela Siebert, married German citizens, executed a single handwritten will together in Germany in 1995. The will consisted of one sentence and was signed by both spouses:

“In case of our death, we Daniela Siebert and Johannes Siebert, name Mr. Martin Steger and Ms. Gertrud Steger as universal heirs of our entire estate.”

Mr. and Ms. Steger were Ms. Siebert’s parents.  The Sieberts later moved to British Columbia, where they owned property.  Ms. Siebert prepared a new will in B.C. in 2019 and revoked any previous wills; she died shortly thereafter.   Mr. Siebert did not make any fresh wills after 1995, and died in 2022.

Following Mr. Siebert’s death, Ms. Steger applied to the B.C. Supreme Court for a grant of administration and sought to prove the 1995 will in solemn form. Ms. Oda came forward and opposed that application, asserting that she was Mr. Siebert’s spouse at the time of his death. Ms. Oda argued that the 1995 will had been revoked by Ms. Siebert and that therefore Mr. Siebert had died intestate (without a will).

The Chambers judge found that the 1995 will was valid under German law and could be recognized and admitted for probate under the Wills, Estates and Succession Act (WESA) unless it had been revoked. Whether it was revoked by the 2019 will was to be determined by B.C. law. The judge characterized the will as a mutual or joint will but used the terms interchangeably; it was held that the Seiberts intended for the will’s disposition to apply in the event they died at the same time or if one died without having revoked their participation. The Court concluded that Ms. Sieibert revoked the 1995 will for both herself and her husband when making her 2019 will.

Ms. Steger appealed the decision and the Court of Appeal allowed the appeal finding multiple errors, including in the court’s treatment of the legal nature of the will and the effect of Ms. Siebert’s revocation.

Joint Wills and Mutual Wills

The Court of Appeal clarified the distinct legal nature and effect of joint wills and mutual wills.

The Court described joint wills as follows, citing a description in Halsbury’s Laws of England:

257. Joint Wills. A joint will is a will made by two or more testators contained in a single document, duly executed by each testator, and disposing either of their separate properties or of their joint property. It is not, however, recognized in English law as a single will. It is in effect two or more wills; it operates on the death of each testator as his will disposing of his own separate property; …

The Court made clear that the “revocation of a joint will by the testator who dies first is not a revocation of the joint will as it pertains to the surviving testator – it is only a revocation of the revoking testator’s will: WESA, s. 55.”

A mutual will can be contained in a joint will or may be in separate documents. The hallmark of a mutual will is that testators make reciprocal testamentary dispositions pursuant to an agreement not to revoke them once the other has died. For example, two spouses enter into a mutual wills agreement whereby they agree to leave their estate to each other, but also agree that upon the death of the survivor of the two of them that the survivor’s estate (which would include the estate of the spouse who died first) will go to their children. While a mutual will can be revoked before either party’s death, once one testator dies, the other is bound by their agreement. Where the surviving testator tries to revoke, equity will intervene and a constructive trust in favor of the intended beneficiary of the mutual will is imposed.

Analysis

The Court of Appeal found that errors were made in the characterization of the Siebert’s will and found that the 1995 will was a joint will. The Court of Appeal also found errors in the lower court’s interpretation that the 1995 will was only intended to dispose of the Sieberts’ estate to the Stegers in the event they died simultaneously or if one of them died without having revoked their participation; there was no evidence that the Sieberts considered revocation or had a reciprocal agreement.

The Court of Appeal affirmed that as the 1995 will was a joint will, and was therefore at common law two separate wills, Ms. Seibert’s 2019 revocation did not revoke the will for Mr. Seibert. The 1995 will was in effect when Mr. Seibert died in 2022; he did not died intestate.

Takeaways

  • Joint wills are not a single will though they are contained in a single document. A joint will operates on the death of each testator as their own separate will.
  • One testator’s revocation of a joint will does not revoke it for the other testators.
  • A mutual will requires evidence of an agreement not to revoke.

DNA TESTING ORDERS IN ESTATE LITIGATION

February 2, 2026

Questions of parentage occasionally arise in estate litigation. A person may die intestate (without a will) and the status of a ‘descendant’ child may be questioned.  Alternatively, a deceased person may leave a will that excludes someone who makes a claim to be the will-maker’s child, prompting a wills variation claim. In both situations, whether the deceased is genetically related would be an important issue at trial.

The current state of the law in B.C. is that a “child” for the purposes of wills variation claims — and entitlement on an intestacy — is limited to natural or adopted children of a deceased (although the B.C. Court of Appeal in Peri v. McCutcheon, 2011 BCCA 401, has left open the possibility that a future case might justify a broader interpretation).

In two recent decisions of the Supreme Court of British Columbia — Morberg Estate (Re), 2025 BCSC 2265, and Hyslop v. Banks, 2024 BCSC 1848 — parentage was in issue and interlocutory (pre-trial) orders were sought for a plaintiff/beneficiary to undergo DNA testing. These decisions provide a useful overview of factors a Court will consider when asked to make this type of order in estate litigation cases.

Background

In Morberg, the deceased had raised two daughters and died without a will. One sister alleged the other was not the natural child of the deceased and sought a DNA testing order. She alleged her sister, mother (when in hospital dying) and her father (on his ‘deathbed’) had all made statements that the sister was not the deceased’s biological child. The deceased was named on the sister’s birth certificate and had acted as her father throughout her life.

In Hyslop, the deceased left a will naming four children as beneficiaries and excluding the plaintiff, who brought a wills variation claim. The deceased was married to the plaintiff’s mother at the time of her birth, was named as father on her birth certificate, and referred to himself as her father throughout her life, including shortly before his death. The defendants relied on various statements allegedly made by the deceased and the plaintiff’s mother suggesting he was not her biological father, as well as evidence that the plaintiff’s younger sister – who shared the same mother – had learned through genetic testing that she was not the deceased’s biological child.

Jurisdiction and Principles Governing an Order for DNA Testing

The Court in both cases confirmed that it has jurisdiction to order DNA testing under the Supreme Court Civil Rules – Rules 7-6(1) and (4) – which allow orders for medical examinations and inspection/preservation of property.

While neither decision sets out a rigid test, a court will look at the following factors on an application:

  • Whether a DNA test is relevant and will materially assist the court in narrowing and focusing issues. When biological lineage will be a central issue at trial, a DNA test can provide probative information and may be determinative;
  • Whether there is a sufficient evidentiary basis to make an order.  While hearsay is allowed on these applications, speculation, bare assertions, unsubstantiated family rumors and statements made without any context are unlikely to suffice;
  • The invasiveness of the mechanism of a DNA test (cheek swab); and
  • The privacy interests engaged.  A DNA sequence is intimate personal information. An order compelling DNA to be provided will lead to information being stored outside of a person’s control and potentially vulnerable to release (i.e. data breach).

In Hyslop the Court made the order for DNA testing. Although the evidence relied upon by the defendants was largely hearsay and contested, the Court was satisfied that there was a sufficient evidentiary foundation to justify testing (particularly with the sister learning she was not the deceased’s child). Given the minimal physical intrusion of the test and its potential to significantly narrow the issues for trial, the Court found it was in the interests of justice. Interestingly, the Court in Hyslop did not consider the privacy interests engaged by a DNA test.

In the November 2025 decision of Morberg, privacy considerations were central, and the Court noted that evidence supporting a DNA testing order had to be compelling enough to justify an ‘invasion of privacy.’ The Court in that case declined to order testing as the evidence was an ‘unsubstantiated family rumor’ and was an insufficient basis.

Key Takeaways:

  • B.C. Courts have jurisdiction to order DNA testing in estate litigation under the Supreme Court Civil Rules but such orders are discretionary and will be fact-specific.
  • Applicants must present a credible evidentiary foundation to justify testing – rumours and uncorroborated hearsay will likely not suffice.
  • Privacy interests are engaged with DNA testing and there must be a sufficient evidentiary basis to justify an ‘invasion of privacy.’
  • While a negative test may very well be determinative, the B.C. Court of Appeal has left open the possibility of making an argument that the definition of ‘child’ should be expanded.

B.C. CASE COMMENT – CAN AN EXECUTOR IN A CONFLICT OF INTEREST AVOID REMOVAL?

January 26, 2026

In my practice, I often hear from beneficiaries who are concerned about the person named as executor in the deceased’s will. A common situation arises where an executor managed the deceased’s finances during their lifetime – often under a power of attorney – and is later accused of misusing funds or benefiting personally to the detriment of the deceased and their estate. In these circumstances, beneficiaries frequently ask whether the executor can remain in that role, particularly where the beneficiaries are looking to recover estate assets from the person named as executor.

Under the Wills, Estates and Succession Act (“WESA”), s. 158(3), and at common law, beneficiaries may apply to the court to have an executor ‘passed over’ or removed for a conflict of interest (among other grounds) and appoint another person to administer the estate. When a new personal representative is appointed, they may investigate or take steps to recover assets from the former executor if doing so is in the best interests of the estate.

Section 151 of WESA provides a different option. It allows beneficiaries and other specified persons to apply to the court for permission to bring a claim on behalf of an estate where an executor will not act, including a claim against an executor personally. Importantly, s. 151 permits beneficiaries to pursue an estate claim without first seeking the removal of the executor.

In Chiu Estate (Re), 2025 BCSC 2196, the B.C. Supreme Court was asked to consider whether section 151 has overtaken or altered the common law approach to conflicts of interest in estate administration and whether it should now be the preferred method for dealing with certain executor conflicts instead of passing over or removing the executor.

Background

In Chiu, the deceased appointed one daughter as executor and the daughter’s husband as alternate executor. During the deceased’s lifetime, the daughter acted under an enduring power of attorney and appeared to have used the deceased’s funds and home for the benefit of herself and her husband.

Concerns about the management of the deceased’s finances became serious enough that the Public Guardian and Trustee (“PGT”) launched an investigation. The PGT identified transactions that were financially detrimental to the deceased and was ultimately appointed as committee of the deceased’s person and estate.

After the deceased’s death, a beneficiary applied to pass over both the executor and alternate executor under s. 158(3) of WESA, alleging a conflict of interest. The executor responded that if a conflict existed, it could be managed through s. 151.

Conflicts of Interests in Estate Administration

Section 158(3) of WESA provides the statutory basis for passing over or removing an executor. In addition, the court has inherent jurisdiction at common law to do so. I have written previously about the principles guiding a court in these applications, but the chief consideration is the welfare of beneficiaries.

Conflicts of interest – whether real or perceived – have long been recognized at common law as a basis for passing over an executor. As set out in Chiu, an executor owes a fiduciary duty to the estate and beneficiaries, meaning they must put the interests of the estate ahead of their own. A conflict arises where the executor is unable, or appears unable, to set aside their personal interests.

As the Court noted in Chiu, a clear example arises where beneficiaries may wish to recover assets from the executor personally. In such cases, the conflict is between the executor’s personal interest in retaining those assets and their duty to maximize the value of the estate. Simply put, an executor cannot pursue estate assets while simultaneously claiming those assets as their own.

That said, the Court emphasized that a conflict must be grounded in evidence. There must be a “viable claim” – or at least a claim requiring investigation – against the executor. A conflict cannot be manufactured simply to disqualify them.

The Role of WESA s. 151

I have written previously about applications for standing under s. 151 here.

In Chiu, the Court confirmed that s. 151 is remedial. It does not eliminate a beneficiary’s right to seek to pass over an executor who is in a disabling conflict of interest. Rather, it can provide a more convenient option in appropriate cases.
For example, s. 151 may be preferable where a conflict is limited to a discrete issue and beneficiaries are otherwise comfortable with the executor continuing, or where estate administration is almost complete and removal would cause delay.

Application of the Law

The executor argued that where a conflict is limited and manageable, s. 151 should be used instead of passing over an executor. The Court rejected that argument holding that “section 151 does not, and could not, derogate from the common law principle that an executor cannot act in the best interests of the estate beneficiaries if their personal interests are out of line with their duty to maximize the value of the estate.”

The Court held that it was the beneficiary’s choice whether to seek to pass over an executor under s. 158(3) or pursue a claim under s. 151.

The Court found that both the named and alternative executor were in a serious and disqualifying conflict of interest. The claims were not speculative; the PGT had identified multiple transactions giving rise to potential claims by the estate. An independent personal representative was therefore required to investigate and consider recovery of funds.

The Court ordered that both the executor and alternate executor be passed over and appointed an independent personal representative to administer the estate.

Takeaways

  • Chiu confirms that while section 151 of WESA can be a useful tool for beneficiaries seeking to pursue a claim against an executor personally, it does not require them to litigate around a conflicted executor.
  • Conflicts of interest remain a fundamental concern, and the court’s role in protecting estates and beneficiaries remains unchanged.

Case Comment: Testamentary Capacity Not Proven Where Will Executed After Diagnosis of Moderate to Severe Dementia

January 19, 2026

In our estate litigation practice we frequently hear from clients who are deeply concerned about a will made when a parent or loved one was experiencing cognitive decline. This was the situation in the recent decision of Lavictoire v. Schwartz, 2025 BCSC 2565, where the Supreme Court of British Columbia was asked to determine whether a will executed shortly after a diagnosis of moderate to severe dementia could be upheld. The Court concluded it could not.

When cognitive decline intersects with late-life testamentary change, courts are rightly cautious. As the Court observed in Lavictoire, testamentary capacity is a “thorny issue”—particularly where a will represents a sharp departure from a prior estate plan and is made in the shadow of declining cognition.

Background

The deceased executed a new will only weeks after her granddaughter commenced a committeeship petition seeking control of the deceased’s person and estate. That petition followed closely on the heels of specialist medical assessments diagnosing the deceased with moderate to severe dementia.

The deceased had two sons, both of whom predeceased her. One son left two daughters—the plaintiff and her sister—who were the deceased’s only grandchildren. The deceased also had a sister, two nieces, and a nephew.

Under a prior will, the estate was left to the deceased’s two sons, without a gift-over. On that footing, the estate would pass on intestacy to the two granddaughters in equal shares. The new will, executed after the dementia diagnosis, significantly altered that result. It divided the residue equally among six family members and included a gift-over clause among the residual beneficiaries. By the time of the deceased’s death, the practical effect was that four beneficiaries—including the plaintiff—would receive an equal share.

Medical Evidence and the Committeeship Proceeding

In the months leading up to the execution of the impugned will, the deceased experienced marked cognitive decline. She was hospitalized on multiple occasions and assessed by both a geriatric specialist and a psychiatrist. Each observed that she lacked meaningful understanding of her personal care needs and financial affairs.

Both physicians later swore affidavits in the committeeship proceeding. One diagnosed moderate to severe dementia due to Alzheimer’s disease or Lewy Body Dementia; the other diagnosed Lewy Body Dementia. Both found that the deceased was unable to answer basic questions concerning her finances.

The Will-Making Process

Shortly after service of the committeeship materials, one of the deceased’s nieces—later a beneficiary under the new will—contacted counsel to arrange for the preparation of a will.

The drafting solicitor, who was also named as executor, met with the deceased and the niece. The niece acted as a Polish interpreter and assisted with instructions. The solicitor was aware of the committeeship proceeding and that capacity was potentially in issue.

The solicitor completed a “master checklist” during the meeting and recorded conclusions under a heading titled “Testamentary Capacity Assessment.” However, he kept no notes of the questions asked or answers given that led him to believe the deceased had capacity, had no meaningful record of her assets or their value, and had no clear understanding of the terms of the prior will or the implications of the changes being made. Cross-examination left unclear whether dispositive instructions originated from the deceased or the niece.

A Polish-speaking colleague later reviewed the will with the deceased, reading it aloud paragraph by paragraph. The deceased indicated agreement or nodded but asked no questions. The colleague testified that he was satisfied the deceased understood the will.

The Law on Testamentary Capacity

The Court reaffirmed the classic test from Banks v. Goodfellow (1870). Testamentary capacity requires that a will-maker understand:
1. the nature and effect of making a will;
2. the extent of the property being disposed of;
3. the claims of those who might reasonably expect to benefit; and
4. that no disorder of the mind influences the dispositions.

Capacity is a legal, not medical, determination. A diagnosis of dementia—or even the existence of a committeeship—is not dispositive. That said, cognitive impairment sufficient to ground a committeeship demands careful and exacting scrutiny of the evidence.

Suspicious Circumstances and the Burden of Proof

At common law, a will that is duly executed with the required formalities (after a testator has read and appears to understand the terms of the will) gives rise to a rebuttable presumption of knowledge, approval, and testamentary capacity. That presumption, however, falls away where suspicious circumstances are present, shifting the burden of proof to the propounder to prove the will’s validity.

There is no closed list of suspicious circumstances, but beneficiary involvement in the preparation of a will is a familiar and powerful example.

Here, the Court identified several circumstances, including:
– a beneficiary’s instrumental role in arranging the will;
– recent medical diagnoses of moderate to severe dementia;
– medical evidence that the deceased could not answer basic financial questions shortly before the will was made; and
– a marked departure from the prior testamentary scheme.

Taken together, these circumstances displaced the presumption and placed the burden squarely on the propounder.

Failure to Establish Testamentary Capacity

The propounder did not meet that burden. There was no persuasive evidence that the solicitor asked questions capable of eliciting the deceased’s understanding of the nature and effect of the will, the extent of her assets, or the consequences of altering her prior estate plan.

The checklist the solicitor used did not track the Banks v. Goodfellow criteria. The evidence suggested reliance on closed, confirmatory questions. As the Court emphasized, the ability to give rational answers is not enough. A will-maker must be able to hold the essential elements of the testamentary act “in some degree of appreciation as a whole.”

Nor did the mere reading aloud of the will, without probing comprehension, assist in establishing testamentary capacity.

Conclusion

The Court declared the will invalid, concluding that testamentary capacity had not been proven by the propounder on a balance of probabilities.

Key Takeaways

– A diagnosis of dementia does not automatically negate testamentary capacity, but it may rise to the level of a suspicious circumstance.
– Wills made in the shadow of a committeeship application will attract close scrutiny. Drafting solicitors bear heavy responsibility in contexts where a testator is suffering from cognitive decline and should ask—and carefully record—open-ended questions that map onto Banks v. Goodfellow criteria; checklists and yes-or-no answers may not suffice.
– Beneficiary involvement in the will-making process remains one of the most potent suspicious circumstances in estate litigation

B.C. Case Comment: Court of Appeal Overturns Award Against Notary who Witnessed Signature to Land Transfer

June 14, 2024

What duties does a notary (or lawyer) have when witnessing a signature on a document, such as a land transfer document, to ensure that the person signing the document understands that document and is voluntarily signing it? What if you are only retaining this person for the limited purpose of witnessing your signature because the document must be notarized?

In Engman v. Canfield 2023 BCCA 56, a notary witnessed a signature on a Form A Transfer document, which transferred her 20-acre property to a third party. The notary only witnessed the signature (and was paid $50 for his services). It turned out that the transfer was part of an unconscionable purchase and sale agreement, and the transferor was “situationally vulnerable” when she signed the document. She was elderly, had health problems, and was feeling pressure to sell. She was also deprived of important information when she agreed to the sale, and the agreement was the product of unequal bargaining power and was an improvident bargain. However, the notary was not aware of any of this.

When the transferor was not paid for her property, she brought a claim against various defendants, including the notary (who she sued for negligence). At trial, the notary was held liable for $465,000 in damages, which was the fair market value of the property at the time of the transfer.

At trial, the Court found that the notary owed the transferor a duty to act with reasonable care when he witnessed her signature, and he breached that duty by not inquiring into the transferor’s capacity, her understanding of the form, the voluntariness of the transfer, or that she received independent legal advice.

The B.C. Court of Appeal allowed the appeal, and dismissed the action in negligence against the notary.

The notary argued that he was merely an “officer” witnessing a signature on a Land Title transfer form, and so he had very narrow responsibilities to confirm the identity of the person signing the form and confirm this was the person named in the form, and witness that person’s signature on the document.

The Court of Appeal did not accept this. The notary was acting in his role as a notary public, and there are standards established for his profession, including urging unrepresented persons to obtain independent legal advice, and if they fail to do so taking care to make sure the person is not under the impression that their interests would be protected by the notary. The Court of Appeal held that the Land Title Act and the notary’s professional guidelines required him to go beyond confirming the identity of the signatory and the fact that the signature on the document belongs to that person. For example, the guidelines provide that notaries should make sure the signature is given voluntarily, and the signatory is aware of the significance of the transaction.

The Court of Appeal upheld the finding of the trial judge that the notary breached his standard of care. However, the Court of Appeal allowed the appeal of the finding of causation. The trial judge found that had the notary insisted that the transferor receive legal advice before he witnessed the form (which he was supposed to do), she would have avoided the loss. The notary argued that this was conjecture, and that the loss would have been suffered in any event.

A defendant is not liable in negligence unless their breach caused the plaintiff’s loss. In some cases, causation can be established by inference, but it cannot be guesswork or conjecture. The Court of Appeal held that there were too many unknowns about what would have happened if the notary had met the standard of care, and that the transferor failed to establish on a balance of probabilities that had the notary made in proper inquiries and declined to witness the Form A because of the responses, the transferor would have acted in a different manner. The other evidence in the case showed that the transferor had capacity, and was not interested in seeking legal advice about the inherent risks.

The appeal was allowed that the claim in negligence against the notary was dismissed.

B.C. Case Comment: Court Awards Damages For Amount Received by Defendant from Deceased Days Before Death

June 7, 2024

If there are suspicions transfers during the deceased’s lifetime, these can be scrutinized and investigated after the death of the deceased. A personal representative ought to consider whether any large transfers should to be challenged, on the basis that a gift was not intended, or that the transfer is otherwise invalid (i.e. due to undue influence, lack of capacity).

In Schwab Estate v. Warriner 2023 BCSC 220, the deceased died from a fentanyl overdose at the age of 47. He had two children, aged 11 and 9. The deceased did not leave a will.

There was a dispute as to whether the defendant was living in a marriage-like relationship such that she was a “spouse” of the deceased. If she was a spouse, she would get a share of the estate under an intestacy. If she was not a spouse, then the children would get the entirety of the estate. It was held that the defendant was not a spouse. This is a highly fact-specific inquiry. I discuss the issue of consideration of spousal status in other posts, for example here.

The second issue in Schwab Estate related to a transfer of $350,000 from the deceased to the defendant four days before his death. The deceased sold his home five weeks before he died, received $800,000 from the sale, and provided a $350,000 bank draft to the defendant.

The defendant argued that the deceased owed her money, and the $350,000 draft was to pay her back. She said that the deceased owed her money for being the primary bread-winner for the years they were together. She gave evidence that there was an agreement between her and the deceased about the approximate amount of the debt and what he was to repay to her.

The court rejected this claim. The Court did not accept the defendant’s testimony, and the documents (in particular bank records) did not assist with her position. There was no evidence of an agreement to pay, and there was no evidence that the amount that would have been payable was $350,000. The Court relied upon the testimony of a witness who described a conversation which suggested that the deceased did not consider that he owed the defendant any money. The bank records also showed that the deceased attended to payment of other debts that he discussed with other parties (including a debt to his drug dealer).

As a result, the transfer was gratuitous and the presumption of resulting trust applied. The defendant failed to establish that the deceased intended to gift her the funds. The evidence was that the deceased intended to gift the funds, potentially with the deceased’s brother. There was also evidence that the deceased intended to shield the monies from the mother of his children.

The Court also held that the transfer was procured by undue influence. The deceased did not transfer the $350,000 of his own full, free and informed thought. The deceased was vulnerable as a result of his ongoing drug addiction, health condition, and paranoia about the mother of his children.

The funds had been spent without an accounting, and so they could not be simply returned. Instead, the court awarded the deceased’s estate damages in the amount of $350,000. The Court also awarded punitive damages in the amount of $50,000, for using her position for her own profit, and spending all of the money with no accounting.

What I’m Reading: Interesting Estate Litigation Articles for May 2024

May 31, 2024

The following is a round-up of noteworthy articles published this month on estate litigation and related issues:

  1. Kiran Sanghera at Hull & Hull LLP (Ontario) discusses a recent Ontario case in which the contents of the deceased’s journal were validated as a will: https://hullandhull.com/Knowledge/2024/05/finding-a-notebook-to-be-a-will/.   This can be contrasted with the B.C. decision in Hadley Estate (Re) 2017 BCCA 311, where the B.C. Court of Appeal concluded that an entry in a journal did not represent the deliberate and final expression of the deceased’s testamentary intentions.
  2. Gillian Fournie at de Vries Litigation LLP (Ontario) discusses the differences between renouncing, removing and passing over: https://devrieslitigation.com/renounce-remove-pass-over-difference/
  3. Venessa DeDominicis of Pushor Mitchell Lawyers (Kelowna) writes about the effect of marriage or divorce on a will: https://pushormitchell.com/2024/04/marriage-divorce-and-your-will/
  4. Ian M. Hull, also at Hull & Hull LLP, discusses the duty to disclose the transfer of estate assets during estate litigation:  https://hullandhull.com/Knowledge/2024/05/is-there-a-duty-to-disclose-the-transfer-of-estate-assets-during-estate-litigation/
  5. Michael McKiernan authored a post on advisor.ca which discusses a B.C. case in which the court refused to compel an unwilling senior to undergo a capacity assessment: https://www.advisor.ca/tax/estate-planning/court-refuses-to-force-capacity-assessment-on-unwilling-senior/

Happy reading!

Relying Upon Hearsay Statements of the Deceased to Establish Intention

May 24, 2024

In many estate litigation cases, the court may benefit from evidence of the intentions of the deceased. For example, whether an asset transferred by the deceased was intended to be gift or is held in resulting trust depends upon the intention of the deceased. As the deceased person cannot give evidence, the court is often asked to rely upon out-of-court statements of the deceased to other persons – hearsay evidence. The court is asked to consider the hearsay statements for the truth of their contents, despite the fact that the person making the statement is deceased and unavailable for clarification, expansion or cross-examination.

If an exception to hearsay doesn’t apply, then the court must consider whether a statement should be admitted under the principled approach to hearsay:

  • The hearsay rule provides that out-of-court statements are presumptively inadmissible to prove the truth of what was said, subject to traditional exceptions and the principled exception.
  • The party seeking to lead hearsay evidence must prove necessity and reliability.
  • Necessity is relatively easy to establish in this type of case – the person making the statement has died and cannot give evidence, and so it is necessary to introduce the evidence through hearsay;
  • Turning to reliability, the statement must meet the requirement of threshold reliability (whether the evidence is admissible) and ultimate reliability (the degree to which the hearsay evidence is accepted or relied upon).
  • A relevant factor is the presence of supporting or contradicting evidence.
  • With respect to threshold reliability:
    • First, procedural reliability is established where there is a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the statement because adequate procedural safeguards were present at the time it was made. For example, was the statement made under oath?
    • Second, substantive reliability arises from the circumstances in which the statement came about or was made. It may be established where there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy, or the statement was made in circumstances where cross-examination would add little or be unlikely to change it.

In the estate context, the approach is often to first determine whether a hearsay statement was even made. Once satisfied the statement was made, if the party giving evidence that the statement was made (i.e. to them) is a party interested in the outcome (i.e. the statement helps their position), then this is dealt with by determining the weight to be attributed to any particular statement. The weight to be given may turn on the credibility of the witness.

In Manhas v. Manhas 2024 BCSC 52, the deceased had three children. Two of them were equal beneficiaries of his estate. Approximately five months before his death, the deceased sold his home, and transferred the proceeds of sale to a bank account held jointly with one of his children. This transfer left his estate with virtually nothing. The issue was whether the transfer of sale proceeds into the joint account constituted a gift to the child who was a joint owner.

The donee testified that her father told her that he wanted her to have the sales proceeds from the house – the hearsay statements. The Court admitted the hearsay evidence. The done was a credibility witness, and the statements were consistent with his conduct (other evidence). This, and other evidence, established that the father intended to gift the proceeds of sale to his daughter.