Applications By Trustees For Directions: Court Declines to Entertain Questions that go to Construction of a Trust

April 20, 2026

Under section 86 of the Trustee Act, and a Court’s inherent jurisdiction, trustees in British Columbia may seek the court’s opinion, advice, or direction on legal questions relating to the management and administration of a trust. However, there are limits. Courts will not permit these avenues to be used as a vehicle to construct, re-write or circumvent the terms of a trust.

That limit was recently articulated in Re: The Jack Leshgold Family (2009) Trust, 2026 BCSC 388 (“Leshgold Trust”), where the Court dismissed a petition framed in administrative terms, but which in substance sought to vary the fundamental terms of a trust.

Full disclosure: my colleague, Betony Rowland, and I acted for the respondent, who successfully opposed the petition.

Background

Leshgold Trust involved a family trust (the “Trust”) settled in 2009 by Leiba Leshgold. She and her husband, Jack Leshgold, were successful property developers in the Lower Mainland of B.C.. The Trust held significant interests in two development companies with real estate assets valued at over $1 billion.

After Ms. Leshgold’s death in 2013, Jack acted as sole trustee until his death in 2024.

On his death, the Trust provided for a three-trustee structure operating by majority:

  • one appointed by their daughter, Susan;
  • one appointed by their son, Robert; and
  • one independent trustee.

The independent trustee was to be appointed by a majority of Susan, Robert, and the most senior non-family officer of Reliance Properties Ltd. (one of the Trust’s principal assets).

Susan became concerned that the Reliance officer—who held the tie-breaking role in appointing the third trustee —might favour Robert. She proposed amending the Trust to replace that mechanism with an experienced independent lawyer acting as an “expert” appointer.

Robert took the position that the Trust permitted amendments only to “administrative provisions,” and that the proposed change was not administrative.

Susan brought a petition under s. 86 of the Trustee Act (and alternatively, the Court’s inherent jurisdiction), asking whether the definitions of “Independent Trustee Appointer” and “Independent Designated Trustee” in the Trust were “administrative provisions” capable of amendment—and, if so, to implement her proposal.

Robert and his sons, as beneficiaries, opposed. They argued the Court lacked jurisdiction to answer what were, in substance, questions of trust interpretation and variation.

The Law: Limits of Section 86 and Inherent Jurisdiction

Section 86 permits a trustee to seek the Court’s opinion, advice, or direction on questions respecting the management or administration of trust property. Similarly, the Court’s inherent jurisdiction allows it to guide trustees on administrative matters and their obligations.

Section 86, and the jurisdiction of the court, has its limits, even on matters that are truly related to administration and management; I’ve written previously on this topic – here.

However, it is a clear line that Courts will not use s. 86 – or inherent jurisdiction – to:

  • engage in the ‘construction’ of a trust instrument or to amend its operative terms; or
  • Determine issues affect the rights of beneficiaries under a trust to trust property.

This relief is intended to assist trustees with what the case law describes as “little matters of discretion” —not to resolve disputes about the structure or fundamental terms of a trust.

Application

The Court agreed with the Respondents in Leshgold Trust and held that the petition fell outside both s. 86 and the Court’s inherent jurisdiction. On a jurisdictional basis the petition was dismissed.  Despite its framing, the petition did not raise administrative questions. In substance, Susan sought to vary the Trust’s terms – without beneficiary consent –  by recasting core provisions as “administrative.”  The questions asked the court to engage in the construction of the trust instrument, and went to the fundamental mechanism of trustee appointment and therefore Settlor intention.

Although unnecessary to the result, the Court went on to address the merits in the alternative.  The Court concluded it would have answered both questions in the negative. The definitions ‘Independent Trustee Appointer’ and ‘Independent Designated Trustee’ in the Trust were not “administrative provisions” capable of amendment by the trustees.

Reading the Trust as a whole, the Court found the Settlor did not intend to permit the amendment of the mechanism by which the independent trustee was appointed. To allow the proposed changes would be to “circumvent and frustrate” the clear intentions of the Settlor.

Key Takeaways

  • Section 86 is not a workaround for trust variation. Courts will not entertain applications framed as administrative where the substance is interpretation or alteration of the trust instrument.
  • The jurisdiction of the court in this area is confined to answering true legal questions regarding the management and administration of trust property (or assisting trustees with ‘momentous decisions’).

 

Disabled Adult Children and Wills Variation in B.C.: Wols v. Funk and the Duty to Make Adequate Provision

April 13, 2026

British Columbia’s wills variation regime places limits on a will-maker’s freedom to dispose of their estate as they see fit. Under the Wills, Estates and Succession Act (“WESA”), courts may vary a will that fails to make adequate, just and equitable provision for a child or spouse.

While a will-maker’s moral obligation to independent adult children has often been described as “tenuous,” a different — and heightened — standard applies where the claimant is an adult child living with significant disabilities. The recent decision in Wols v. Funk, 2026 BCSC 404, is an illustration of that principle.

Background

Wols involved a wills variation claim brought by the Public Guardian and Trustee as litigation guardian for the deceased’s only child.

George Wols died in 2021. He was predeceased by his wife in 2014, and survived by his son, Gerald (“Gerry”) Wols.

Under a 2014 will:

  • Gerry was to receive approximately 25% of the estate; and
  • Mary and Ewald Funk were to receive the remaining 75%.

The estate was valued at approximately $490,000. No reasons were provided by George for this distribution.

The Funks were not family members. Their relationship with the Wols began in 2006 through paid housekeeping services, but also developed into a personal relationship over time. They were named as executors in the will.

Gerry, age 64 at trial, lived with lifelong and significant cognitive and physical disabilities. He had never been capable of independent living and resided in a care facility. He relied on government benefits that provided only a subsistence level of support. The evidence established that even modest additional resources would materially improve his quality of life.

Legal Framework

Section 60 of WESA permits a court to vary a will that does not make adequate provision for the proper maintenance and support of a child.

The analysis is objective. Courts assess whether the will meets the will-maker’s legal and moral obligations, measured against contemporary community standards. The central question remains: what would a “judicious parent” do in the circumstances?

In claims by adult children, the focus is typically on moral obligations. Courts in B.C. have identified a number of factors for assessing the existence and strength of moral obligations owed to adult children. I have written previously on those factors and they are listed here.

Importantly, B.C. courts have repeatedly recognized that a will-maker owes an enhanced moral obligation to a child with disabilities, as compared to an independent adult child.

Certain arguments advanced in this context have been rejected by courts in B.C.:

  • Subjective intention: the fact a will-maker considered the circumstances of their child with disabilities and obtained legal advice is not determinative. The test is objective – whether the provision meets “society’s reasonable expectations of a judicious parent.”
  • No competing moral claims from non-spouses/children: worthy friends, caregivers, and extended family do not attract legal or moral claims under WESA – or the court’s consideration when assessing a child’s claim.
  • Availability of government benefits is not a defence: the test is not “needs-based” or measured at the subsistence standard. A will-maker’s obligation is not satisfied or diminished by the availability of public funding, which may in any event be uncertain.

Application in Wols v. Funk

The Court had little difficulty concluding that the will failed to make adequate, just and equitable provision for Gerry.

The Court considered:

  • There was no estrangement or misconduct in the parent-child relationship;
  • George’s estate was not so large as to justify the provision made for Gerry relative to that made for the Funks;
  • Gerry lived at a subsistence level, and additional funds would materially improve his life;
  • There was no evidence explaining George’s decision to limit Gerry’s share;
  • Gerry’s disabilities rose to the level that he would never be able to live independently and his needs had increased over time, requiring additional support;
  • There were no competing legal or moral claims — the Funks, while supportive and involved, did not qualify.

At the same time, the Court acknowledged that the Funks had played a meaningful role in George’s life, and that some recognition of his testamentary wishes was appropriate.

The will was therefore varied to provide:

  • 80% of the estate to Gerry; and
  • 20% to the Funks.

The result reflects the balance at the heart of WESA: testamentary autonomy yields where necessary, but is not entirely displaced.

Key Takeaways

  • Enhanced obligation: Will-makers should be advised by drafting solicitors that courts will generally expect increased provision for adult children with disabilities, even relative to other potential beneficiaries.
  • The existence of government benefits for a child with disabilities will not insulate a will from variation.
  • Objective standard: Courts apply a “judicious parent” test grounded in contemporary norms — not the will-maker’s subjective intentions.
  • A child’s entitlement under WESA will not be displaced by non-child/spouse beneficiaries, even deserving ones.

B.C. Case Comment: Capacity to Revoke a Will

April 6, 2026

I’ve recently written about how a diagnosis of moderate to severe dementia impacts a court’s assessment of testamentary capacity in the context of preparing a will. But, how does dementia factor into an alleged revocation of a valid will?

In Jugovits Estate (Re), 2026 BCSC 269, the B.C. Supreme Court was asked not only to determine whether a will had been revoked shortly before death, but also whether the deceased, who was hospitalized with Alzheimer’s disease, had the legal capacity to do so.

Background

Laszlo Jugovits executed a will in May 2021; in his will, he left $275,000 in cash gifts to four stepdaughters, and the residue of his estate to his son, Laszlo Jr. The primary asset was his home, valued at approximately $1.3 million.

In September 2023, Mr. Jugovits was admitted to hospital and was suffering with symptoms of Alzheimer’s disease; he was unable to stand, and had minimal hand strength – described as “claw hands.” On October 26, 2023, a treating physician wrote that he lacked capacity to direct his care, make health care decisions or manage his finances due to major neurocognitive disorder. He died in hospital on November 22, 2023.

Laszlo Jr. gave evidence that in late October 2023 his father asked him to retrieve documents from home, including what he later believed to be his original will. He observed a phone call between his father and his lawyer (which he recorded in part), after which the deceased tore the will almost in two, and stated in English, “I want to change my will.” The deceased asked Laszlo Jr., to place the torn will in his hospital bedside table; he was later unable to find it. Another witness gave evidence that she observed the deceased rip up papers and say he wished to change his will.

Other evidence placed the intact original will in Laszlo Jr.’s possession after his father’s death. A stepsister and her daughter testified that on January 14, 2024, Laszlo Jr. attended their home with documents and indicated he had located the original will. Both testified that they observed a document labeled “Last Will and Testament” that did not have any “Copy” marking. The stepsister gave evidence that Laszlo Jr. asked her not to tell anyone what she saw. The conversation with Laszlo Jr. was partially recorded.

The certified copy of the will was circulated two days later, and the executor sought probate. If revocation were established, the estate would pass on intestacy — entirely to Laszlo Jr.

Law on Revocation and Testamentary Capacity

Under Section 55(1)(c) of WESA, a will is revoked where a will-maker burns, tears or destroys all or part of their will (or directs someone to do so in their presence), and does so with the intention of revoking all or part of it.

At common law, where an original will cannot be located, and was last known to be in the deceased’s possession, a presumption arises that it was destroyed with intent to revoke. I have previously written about the presumption of revocation and its practical implications (here). Where it applies, the burden of proof shifts to the person denying revocation to show, on a balance of probabilities, that the original was merely lost or misplaced.

However, the presumption does not operate where there is evidence that the will-maker became mentally incapable after the will was executed. In those circumstances, the party alleging revocation must prove on a balance of probabilities that the will was revoked and that the testator had testamentary capacity.

Whether a deceased had testamentary capacity to revoke a will is a legal, not medical, determination. A dementia diagnosis is not determinative; a person declared medically incapable may still meet the legal test. But dementia that rises to the level that doctors declare a testator incapable will attract careful judicial scrutiny (see my prior discussion on this and the legal test for testamentary capacity here). In the revocation context, the Court must be satisfied that the deceased meets the testamentary capacity criteria and had a reasonable understanding of the implications for their estate and beneficiaries when they revoked their will. No lesser standard applies because a revocation is a ‘simpler’ act.

Application to the Case

The Court concluded that the presumption of revocation did not assist Laszlo Jr., because ample evidence cast doubt on the deceased’s capacity at the time of the alleged revocation; he held the burden of proving revocation and capacity. The Court observed that it is inherently suspicious in the revocation context when the person who stands to benefit from a revocation is the same person who witnesses or participates in it.

On the evidence, the Court was not satisfied that the will had been destroyed. Laszlo Jr. was an interested witness, standing to gain if revocation were found. Recorded interactions and the testimony of the stepsister and her daughter were persuasive and Laszlo Jr.’s explanation that he misunderstood what documents he had were not accepted. The Court was also not persuaded that the deceased, with his physical limitations, had the ability to tear the will in half.

In the alternative, even if the Court were wrong about revocation, it concluded that the deceased lacked testamentary capacity in late October 2023. The medical evidence from the treating doctor, Laszlo Jr’s recordings of conversations with the deceased, including one with his lawyer, raised questions about capacity and whether he was being unduly influenced. The Court found the evidence did not demonstrate that the deceased had a considered appreciation of the consequences of revoking the gifts to his stepdaughters.

The Court admitted the certified copy of the will to probate.

Key Takeaways

  • The presumption of revocation does not always apply where the original Will is missing. Where testamentary capacity is in doubt, the party alleging revocation must prove both revocation and capacity.
  • Revocation does not attract a lower legal threshold for finding testamentary capacity.
  • Allegations of “deathbed revocation” in the context of advanced dementia should be closely examined, particularly where a beneficiary stands to gain and is involved in the act.

What I’m Reading: Interesting Estate Articles for March 2026

March 30, 2026

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

  1. Mark Debono at Hull & Hull LLP (Ontario) outlines key practical considerations for executors and trustees administering estates that include firearms:
    https://hullandhull.com/2026/03/firearms-in-the-house-a-practical-guide-for-estate-trustees/
  2. Albert Oosterhoff at WEL Partners (Ontario) discusses the New Brunswick Court of Appeal decision in Lamont v. Estate of Louis Fournier et al., addressing suspicious circumstances, testamentary capacity, and undue influence. The Application for Leave to Appeal to the Supreme Court of Canada was recently dismissed:
    https://welpartners.com/blog/2026/03/testamentary-capacity-suspicious-circumstances-and-undue-influence/
  3. Witney Teed and Mia Viana at McLennan Ross (Alberta) examine the use of no-contest clauses in wills (it should be noted that in B.C. these sorts of clauses are generally void as being contrary to public policy) :
    https://www.mross.com/what-we-think/article/take-it-or-leave-it–no-contest-clauses-in-alberta-wills
  4. Sofia Hector, also of Hull & Hull LLP (Ontario), discusses the obligations of estate trustees when administering estate property with potential environmental risks:
    https://hullandhull.com/2026/03/estate-trustees-and-environmental-due-diligence-what-is-the-standard-of-care/
  5. CTV News reports on Stainer v. Thurgood, a decision I recently wrote about, in which the plaintiff seeks to expand the definition of “child” for wills variation claims in British Columbia:
    https://www.ctvnews.ca/vancouver/article/disinherited-and-disavowed-a-bc-woman-is-asking-the-court-to-decide-if-she-was-a-deceased-mans-child/

Happy reading!

Should the Definition of “Child” Be Expanded for Wills Variation Claims? B.C. Court Finds a Triable Issue

March 23, 2026

Recently, I wrote about DNA testing orders in estate litigation and noted that, to date, British Columbia courts have limited the legal definition of “child” for wills variation claims to biological or adopted children. I also highlighted that the Court of Appeal had left open the possibility that a future case could revisit this definition.

That possibility was directly considered in the chambers decision of Stainer v. Thurgood, 2026 BCSC 326.

In Stainer, the administrators of an estate applied under Rule 9‑6 of the Supreme Court Civil Rules to summarily dismiss a wills variation claim on the basis that there was no genuine issue for trial. The plaintiff admitted that she was neither the biological nor adopted child of the deceased. The dispute centered on whether she nonetheless had standing to bring her claim.

The plaintiff and the deceased discovered via DNA testing in 2016 that they were not biologically related. In 2018, the deceased executed a will leaving his estate to his brother and made a statutory declaration that he had never fathered or adopted any children. The plaintiff, however, had been listed on the deceased’s birth certificate, raised as his child, actively parented by him, and maintained a lifelong relationship with him, albeit with some rough patches.

The defendants argued that the Court was bound to dismiss the claim by the Court of Appeal’s decisions in Peri v. McCutcheon, 2011 BCCA 401 and Hope v. Raeder Estate, 1994 CanLII 2185 (B.C.C.A.), which held that for purposes of wills variation claims, “child” is limited to biological or adopted children. They also noted that with the introduction of the Wills, Estates and Succession Act in 2014, after Peri was decided, the legislature did not expand this definition.

The plaintiff countered that she was a child of the deceased in all practical and moral respects and that it would be contrary to modern ethical standards to find that he owed her no moral or legal duty at death. She relied on shifting social norms in family law, including recognition of diverse family structures, and argued that the courts should reconsider the definition of “child.”

Courts considering applications to strike claims under Rule 9-6 cannot weigh evidence against the plaintiff, and should tend toward allowing novel claims. A claim can only be dismissed if, assuming all uncontested facts are true, it is “beyond a reasonable doubt” that no genuine issue for trial exists.

The chambers judge considered the comments of the court in Peri, that the question of expanding the definition of “child” “should await a more compelling factual foundation.” The plaintiff argued that her relationship with the deceased was that “‘more compelling” foundation and that societal norms had evolved beyond the heteronormative assumptions underlying existing precedent. She relied on the legal principle that the law is a “living tree” that can evolve to address contemporary realities.

The Court in Stainer ultimately concluded that the precedents in Hope and Peri did not bar all wills variation claims from non-biological and non-adopted children in B.C., and rather expressly left open the possibility of an expanded definition.  A triable issue was present, the defendants’ application was dismissed, and the plaintiff’s claim could proceed to trial.

Takeaway

If the trial of this matter goes ahead, and is decided in the plaintiff’s favour, the case could be a significant development in estate litigation in B.C.; potentially allowing stepchildren and others, like the plaintiff, who were previously excluded to bring wills variation claims.

When Texts Aren’t Wills – Court of Appeal Clarifies Section 58

March 16, 2026

I’ve written previously about section 58 of the Wills, Estates and Succession Act (WESA) – this is a powerful remedial provision that allows B.C. Courts to ‘cure deficiencies’ and admit to probate a record or document that represents a deceased’s testamentary intentions, but does not meet the formal requirements of a valid will, revocation, alteration or revival of a past will under WESA.

Section 58 has been used by courts in B.C. to ‘cure’ and probate: a lawyer-prepared will that was unsigned, a handwritten will that was improperly witnessed, loose notes around a bedroom leaving certain property to specific people, and entries on a computer setting out plans to prepare a will.

In the decision of Paige v. Noel, 2026 BCCA 358, the ‘records’ at issue were an informal text message and email. The chambers judge found these messages were a ‘record’ that could be ‘cured’ under s. 58. The Court of Appeal disagreed and overturned the decision.

Paige v. Noel is a reminder from the Court of Appeal of the ‘basics’ of what is required from a document/record before a court can consider use of s. 58.

Background

Barbara Kessil died in January 2023 and left a 2014 will that divided her estate equally between her son and her goddaughter, Jennifer Paige.

In 2021, conflict arose between Ms. Paige and Ms. Kessil. In October 2022, Ms. Kessil sent a text to her executrix, Michelle Noel, stating that she had made an appointment with a notary to “redo” her will and that “Jennifer is out.” Several days later, Ms. Kessil emailed Ms. Noel, setting out that she had met the notary, that a will would take a couple weeks to prepare, and that her current will would remain in place in the meantime so that she would not be intestate (without a will) if she died in the interim. These two messages later became the subject of the s. 58 application.

Ms. Kessil later terminated the notary’s services. An appointment with a second notary was made but cancelled and never rescheduled for apparent health reasons.

In early January 2023, Ms. Kessil contacted a lawyer neighbour about making a ‘very minor change’ to her will; she died several days later without executing a new will or providing instructions.

Section 58 of WESA and the Legal Test

Section 58(2) and (3) allow a court to “cure deficiencies” and treat a non-compliant document as a valid testamentary instrument if the court determines that the record (including in electronic form), document, writing or marking on a will represents:

  1. the testamentary intentions of a deceased person,
  2. the intention of a deceased person to revoke, alter, or revive a will … or
  3. the intention of a deceased person to revoke/alter/revive a testamentary disposition in a document other than a will.

On a s. 58 application a judge must determine on the balance of probabilities (more likely than not standard), that the non-compliant document represents the ‘fixed and final’ testamentary intentions of a deceased at the ‘material time’ (usually at the time the document was made). A judge can consider ‘extrinsic evidence’ about the state of mind of the deceased before, during and after the document was made to help make this determination.

However, in Paige, the Court of Appeal reminds us that the wording of s. 58(2) requires the deceased to have intended that the document itself would stand as their will, revocation or alteration of an existing will, noting the long-standing principle at common law that “no will is entitled to probate unless the testator executed it with the intention that it should take effect as his will.”

In Paige, the Court makes clear that not every expression made by a person, verbally or in writing, about disposal of their property on death constitutes a testamentary intention and notes that “the further a document departs from formal requirements, the harder it will be for a court to find it represents the deceased’s testamentary intention.”

Application of the Law to the Case

The Court of Appeal found the chambers judge erred in their understanding of ‘fixed and final intention’ and as a result erred in their interpretation of s. 58. Being in text andemail form did not turn a “casual conversation” between Ms. Noel and the deceased “into a legally operative testamentary record.”

On the face of the messages, the deceased expressed an intention to remove Ms. Paige through the preparation of a new will, and until a new will was prepared the 2014 will was to remain in effect. It was clear the deceased did not intend to alter her will through the text and email. Extrinsic evidence on the deceased’s state of mind did not ‘displace’ the words of those messages.

Takeaways

  • While section 58 applications are fact specific the Court of Appeal reminds us that there are basic requirements that must be present before a document can be cured and probated – namely, the deceased must have intended that the
    non-compliant document or record serve as their will (or alteration or revocation of a previous will).
  • The further away a document falls from meeting the technical requirements of a valid will under WESA – in this case a casual text or email – the harder it will be for a court to find that it shows testamentary intention.
  • Not every expression of what a person wants done with their property when they
    die constitutes a ‘fixed and final’ testamentary intent.

B.C. Court of Appeal Reaffirms the Presumption of Early Vesting

March 9, 2026

What happens when a beneficiary survives a will-maker but dies before the estate is distributed? Does their share pass to their own estate – or fall back into the residue?

In estate litigation, timing can determine entitlement. If a beneficiary dies before distribution, whether their interest survives them depends on vesting. In Lewis v. Jack, 2026 BCCA 18, the British Columbia Court of Appeal reaffirmed that the law favours early vesting – immediately upon a will-maker’s death – and that only clear and unequivocal language will rebut that presumption.

Background

Kenneth Jack died in 2018 leaving a will that bequeathed his property and directed his executor to liquidate the estate, pay debts, and divide the residue “then remaining” equally among his children “then alive.” Mr. Jack’s two sons, Travis and Jason, survived him. Travis was named executor.

The estate’s principal asset—a ranch property—was not sold after Mr. Jack’s death and continued to be operated by his two sons. Jason died in 2023. Jason’s estate asserted that his interest in his father’s estate, including the ranch, had vested at the time of Mr. Jack’s death. Travis, in his capacity as executor, argued that under the language of the will Jason’s interest vested only upon distribution and was therefore forfeited because he died before that time.

The chambers judge accepted the executor’s position, holding that the sequential directions to the executor and the words “then remaining” and “then alive” reflected Mr. Jack’s intention to rebut the presumption of early vesting – with the result that Jason was disinherited.  The Court of Appeal allowed the appeal and overturned this result.

The Presumption of Early Vesting

Madam Justice Fisher, writing for a unanimous Court, emphasized that the presumption of early vesting is a long-standing principle of will construction grounded in certainty and fairness. Absent a clearly expressed and unambiguous contrary intention, testamentary gifts are presumed to vest at the time of the testator’s death, even where payment or distribution may be postponed.

The Court reviewed over two centuries of authority confirming that:

  • Postponement of distribution for administrative convenience does not defer vesting;
  • The presumption applies equally to gifts to named beneficiaries and to classes;
  • Courts are reluctant to interpret wills in a manner that allows executors, through delay or discretion, to control when—or whether—vesting occurs.

As the Court observed, the law has consistently resisted interpretations that make beneficiaries’ rights depend on “the caprice or dilatoriness” of executors.

Analysis

The Court of Appeal allowed the appeal and declared that the residue of Mr. Jack’s estate vested in equal shares in his sons as of the date of his death. Jason’s interest was not divested by his subsequent death before distribution.

The Court held that the chambers judge had erred in interpreting the will. The subclause directing the executor to divide and distribute the residue to the children “then alive,” had to be read in the context of the clause as a whole and the will as a whole. Properly construed, the will did not express an intention to postpone vesting until the time of distribution.

Significantly, the chambers judge had acknowledged that postponed vesting was not the only reasonable interpretation of the clause. The Court of Appeal held that this alone engaged the presumption of early vesting: where language is capable of more than one reasonable interpretation, a court cannot infer an intention to postpone.

Takeaways

  • Lewis is a reminder that delayed vesting conditions must be drafted, not implied. If a will-maker intends a beneficiary to survive to distribution, the will must say so in unmistakable terms. Ambiguity will be resolved in favour of early vesting.
  • Courts remain reluctant to interpret wills in a manner that leaves vesting of interest to the timing or discretion of an executor.

What I’m Reading: Interesting Estate Articles for February 2026

March 2, 2026

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

  1. Ian Hull at Hull & Hull LLP (Ontario) writes about the importance of a sufficient paper trail when advancing a trust claim over land held in a deceased’s name: https://hullandhull.com/2026/02/proving-a-trust-over-land-the-importance-of-a-proper-paper-trail/
  2. Jessica Homer at WEL Partners (Ontario) explores predatory romance schemes including where they intersect with estate law:  https://welpartners.com/blog/2026/02/dont-go-breaking-my-heart-or-my-bank-predatory-romance-scams/
  3. James Steele at Robertson Stromberg LLP (Saskatchewan) reviews a recent Saskatchewan Court of Appeal decision on the use of non-binding or ‘precatory’ language in wills and the conflicts that can arise within families as a result:  https://www.rslaw.com/2026/01/19/case-comment-hipkins-v-mcdonald-2025-skca-34/
  4. Estate Litigation in the News: the Vancouver Sun reported on a recent B.C. Court of Appeal decision overturning a will that left the bulk of a $5 million dollar estate to an executor and her siblings, to the detriment of 14 cousins:  https://vancouversun.com/news/local-news/bc-judge-overturns-will-5-million-estate-will-decision
  5. Geoffrey Sculthorpe also at Hull & Hull LLP discusses a recent Ontario Court of Appeal decision on validation of deficient testamentary documents under the Succession Law Reform Act: https://hullandhull.com/2026/02/hejno-v-hejno-2025-onca-876-court-of-appeal-addresses-fresh-evidence-and-the-validation-of-imperfect-wills-under-s-21-1-of-the-slra/

Happy reading!

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.