Month: February 2026

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.