Month: March 2026

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!