When considering changes to a will, and particularly where a named beneficiary also holds a power of attorney, the legal and ethical landscape becomes complex. Such situations invite close scrutiny for undue influence, capacity concerns, and conflicts of interest, including whether the attorney’s fiduciary duties have been respected and appropriate safeguards observed. This is especially prominent when the new will differs drastically from the substance of the previous will. Practical risk management includes independent legal advice, clear documentation of the testator’s instructions, and avoiding attorney involvement in the retainer or drafting process where their interests may be engaged. Courts assess these dynamics carefully, and allegations can give rise to costly, protracted disputes over a will’s validity. A recent illustration of these principles in action was heard in the British Columbia Court of Appeal in Kroeger v. Bush Estate.[1]
Background
The Deceased, Helen Bush (the “Deceased”) was born in 1929 and passed away in 2021 at the age of 92. Her husband had predeceased her in 2018 and had left the entirety of his estate to her. At the time of death, her estate was valued at around $5 million (the “Estate”). Many of the assets at the time of death were tied up in various investments.
The Deceased had prepared and executed a will in 2001 that left the residue of her estate to be equally divided and administered between her 18 nieces and nephews equally (the “2001 Will”). In early 2018, following her husband’s dementia diagnosis, the Deceased, along with her husband, granted powers of attorney to their niece, Sandra Rodrigues (the “Respondent”) who is a Certified Professional Accountant.
Three months after the Deceased’s husband’s passing, the Respondent contacted Ketherine Manvell (“Ms. Manvell”), a notary public who had acted for the Deceased since 2006 and had prepared the powers of attorney documents. The Respondent asked Ms. Manvell to prepare a new will for the Deceased, sending along a copy of the 2001 Will with a handwritten list of changes to be made. This handwritten list was written by the Respondent but signed by the Deceased.
The new will prepared by Ms. Manvell in 2018 (the “2018 Will”) drastically differed from the 2001 Will, which left the residue of the Estate to be divided equally among the Deceased’s 18 nieces and nephews. The 2018 Will made specific bequests of $5,000 to each of the Deceased’s nieces and nephews, other than the Respondent and her three siblings, who were to divide among themselves the residue of the Estate. As a result, whereas each of the nieces and nephews were to receive roughly $275,000 under the 2001 Will, they would only receive $5,000 under the 2018 Will, with the Respondent and her three siblings receiving close to $1.2 million each.
The Lower Court Proceedings
The Deceased’s sister, Irene Kroeger (the “Appellant”), filed a notice of dispute challenging the 2018 Will’s validity, leading to the Respondent filing an application to prove the 2018 Will.
The Chambers Judge found that the 2018 Will had been executed in compliance with the Wills, Estates and Succession Act, [WESA][2] in that there was no undue influence or suspicious circumstances, and that the deceased had sufficient knowledge of the extent and value of the Estate. Notably, despite this finding, the Chambers Judge awarded special costs to be payable by the estate, finding that the significant differences between the two wills made the dispute over the validity a reasonable one.
The Appellant subsequently launched an appeal of the Chambers Judge’s decisions on the following grounds:
- Whether the Chambers Judge erred in concluding that there were no suspicious circumstances; and
- Whether the Chambers Judge erred in concluding that the deceased had sufficient knowledge of the extent and value of her estate when she executed the 2018 Will.
Analysis
Justice Fenlon, writing on behalf of the BCCA, found that, although the Chambers Judge correctly identified the relevant legal principles, they erred in their application. This error was made at least in part due to the fact that the Chambers Judge blended his assessment of undue influence, suspicious circumstances, and capacity, observing that the issues were interrelated. The BCCA found that such an approach to an analysis of a will’s validity should be avoided, with each individual issue being addressed step by step, giving the shifting burden of proof.
Issue 1: Suspicious Circumstances
The Appellant, in the initial hearing, had identified a number of suspicious circumstances in relation to the creation of the 2018 Will. These suspicious circumstances included:
- The marked departure from the Deceased’s prior expressed intentions in the 2001 Will;
- The absence of any explanation offered by the Respondent or otherwise as to how the Deceased’s decision to change the will came about;
- The fact that the Respondent was instrumental in the preparation of the 2018 Will;
- The fact that the changes greatly benefitted the Respondent and her siblings; and
- The fact that when the Respondent applied to probate the 2018 Will, she advised the beneficiaries that she was unaware of the existence of an earlier will, when she had in fact provided a copy of the 2001 Will to Ms. Manvell when preparing the 2018 Will.
The Chambers Judge found that the Respondent’s role in the preparation of the 2018 Will was not suspicious given the limited technical abilities of the Deceased, specifically that the Deceased did not have access to email or a cell phone to instruct Ms. Manvell. That, coupled with the Deceased’s affirmative testamentary capacity, resulted in what the Chambers Judge found to be not even a “miasma of suspicion.”[3]
The BCCA found that here the Chambers Judge made a number of palpable and overriding errors in his assessment of the evidence provided by the Appellant. First, he only focused on the logistics in communicating instructions given that the Deceased did not have email or a cell phone. In doing so, the BCCA found that the Chambers Judge failed to consider the involvement of the Respondent in conjunction with her role as a person in a position of trust who benefitted significantly from the changes to the will. Citing the BC Supreme Court decision of Laszlo v. Lawton,[4] the BCCA found that such circumstances are a common basis for establishing suspicious circumstances.
Additionally, the BCCA found that although the Chambers Judge correctly observed that the evidence must raise a specific and focused suspicion rather than a “general miasma”,[5] he failed to grapple with the specific suspicion raised by the appellant – that being the instrumental role of a trusted attorney in the preparation of a will that significantly increased bequests to herself to the detriment of the other beneficiaries.
While the presence of suspicious circumstances alone is not sufficient to prove undue influence such that a will shall be found invalid, it can be sufficient to set aside the presumption of validity of a given will. Here, the BCCA found that the specific circumstances involved in the preparation and execution of the 2018 Will did in fact rise to the level that would rebut the presumption of validity, and therefore the Respondent should have had the burden of proving the Deceased’s testamentary capacity, knowledge, and approval of the 2018 Will. This did not occur, and as such was a palpable and overriding error.
Issue 2: the Chambers Judge’s assessment of capacity, knowledge, and approval
As set out in Banks v. Goodfellow,[6] a will-maker has testamentary capacity if they:
- understand what a will is—that it disposes of the will-maker’s property on death;
- understand the extent of the property being disposed of;
- have in mind family and others who would be the natural objects of the will-maker’s bounty; and
- are suffering no disorder of the mind that would poison their affection, pervert their sense of right, or prevent the exercise of their natural faculties—that no insane delusion shall influence their will in disposing of their property.
The Chambers Judge found that the Deceased had the sufficient mental acuity to make a will in 2018, and the BCCA found no error in that conclusion on review of the evidence. The issue on appeal is whether the Deceased was aware of the magnitude of the Estate and therefore did not appreciate the size of the residue and the effect of dividing that residue among the beneficiaries. On the point, the Chambers Judge found that, given the Deceased’s previous dealings with Ms. Manvell and her prior knowledge of the extent of her estate, that at the time of the 2018 Will’s creation, the Deceased had sufficient knowledge of the extent and value of the Estate.
The BCCA held that this reliance on her prior knowledge was an error, and that relying on that evidence alone was insufficient to prove that the Deceased had sufficient knowledge at the time of the 2018 Will’s creation. The BCCA, citing Russell v. Fraser,[7] found that it must be shown that a testator is aware of the approximate value of the residue of their estate at the time of a will’s execution.
Given that a number of the Deceased’s assets were tied up in various investments, there was insufficient evidence provided to suggest that she was aware of the extent of her estate. Simply writing cheques and doing limited banking fell short of evidence that the Deceased had the sufficient knowledge required. As such, the BCCA found that the Respondent failed to meet the burden of proving the 2018 Will, and the 2018 Will was found to be invalid. An order was therefore made for the estate to be distributed in accordance with the 2001 Will.
Final Thoughts
A key aspect of this decision ultimately became the fact that Ms. Manvell did not confirm with Deceased that she was aware of the extent of her estate when executing the 2018 Will. In fact, it was Ms. Manvell’s testimony that it was not her regular practice to do so. Often, certain formalities such as this can easily go unattended. However, in this case, the absence of this step led to a difference of millions of dollars. Although suspicious circumstances alone cannot overturn a will, it is important to be wary of them, as their presence can open the door to a will being overturned on formalistic oversights, as evidenced by this decision. As an attorney, it is important to understand your role as a person in a position of trust and be vigilant about preventing even the appearance of suspicious circumstances. As evidenced by this decision, failing to do so may result in a vast departure from a testator’s stated intention.
—
[1] Kroeger v. Bush Estate, 2026 BCCA 16
[2] Wills, Estates and Succession Act, S.B.C. 2009, c. 13
[3] Supra note 1 at para 26
[4] Laszlo v. Lawton, 2013 BCSC 305 at para 207
[5] Clark v. Nash (1989), 61 D.L.R. (4th) 409 at 425, 1989 CanLII 2923 (B.C.C.A.)
[6] Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 at 565, 39 L.J.Q.B. 237 (U.K)
[7] Russell v. Fraser (1980), 118 D.L.R. (3d) 733, 1980 CanLII 737 (B.C.C.A.) at para 744
Written by: Mark Polese
Posted on: April 30, 2026
Categories: Commentary, WEL Newsletter
When considering changes to a will, and particularly where a named beneficiary also holds a power of attorney, the legal and ethical landscape becomes complex. Such situations invite close scrutiny for undue influence, capacity concerns, and conflicts of interest, including whether the attorney’s fiduciary duties have been respected and appropriate safeguards observed. This is especially prominent when the new will differs drastically from the substance of the previous will. Practical risk management includes independent legal advice, clear documentation of the testator’s instructions, and avoiding attorney involvement in the retainer or drafting process where their interests may be engaged. Courts assess these dynamics carefully, and allegations can give rise to costly, protracted disputes over a will’s validity. A recent illustration of these principles in action was heard in the British Columbia Court of Appeal in Kroeger v. Bush Estate.[1]
Background
The Deceased, Helen Bush (the “Deceased”) was born in 1929 and passed away in 2021 at the age of 92. Her husband had predeceased her in 2018 and had left the entirety of his estate to her. At the time of death, her estate was valued at around $5 million (the “Estate”). Many of the assets at the time of death were tied up in various investments.
The Deceased had prepared and executed a will in 2001 that left the residue of her estate to be equally divided and administered between her 18 nieces and nephews equally (the “2001 Will”). In early 2018, following her husband’s dementia diagnosis, the Deceased, along with her husband, granted powers of attorney to their niece, Sandra Rodrigues (the “Respondent”) who is a Certified Professional Accountant.
Three months after the Deceased’s husband’s passing, the Respondent contacted Ketherine Manvell (“Ms. Manvell”), a notary public who had acted for the Deceased since 2006 and had prepared the powers of attorney documents. The Respondent asked Ms. Manvell to prepare a new will for the Deceased, sending along a copy of the 2001 Will with a handwritten list of changes to be made. This handwritten list was written by the Respondent but signed by the Deceased.
The new will prepared by Ms. Manvell in 2018 (the “2018 Will”) drastically differed from the 2001 Will, which left the residue of the Estate to be divided equally among the Deceased’s 18 nieces and nephews. The 2018 Will made specific bequests of $5,000 to each of the Deceased’s nieces and nephews, other than the Respondent and her three siblings, who were to divide among themselves the residue of the Estate. As a result, whereas each of the nieces and nephews were to receive roughly $275,000 under the 2001 Will, they would only receive $5,000 under the 2018 Will, with the Respondent and her three siblings receiving close to $1.2 million each.
The Lower Court Proceedings
The Deceased’s sister, Irene Kroeger (the “Appellant”), filed a notice of dispute challenging the 2018 Will’s validity, leading to the Respondent filing an application to prove the 2018 Will.
The Chambers Judge found that the 2018 Will had been executed in compliance with the Wills, Estates and Succession Act, [WESA][2] in that there was no undue influence or suspicious circumstances, and that the deceased had sufficient knowledge of the extent and value of the Estate. Notably, despite this finding, the Chambers Judge awarded special costs to be payable by the estate, finding that the significant differences between the two wills made the dispute over the validity a reasonable one.
The Appellant subsequently launched an appeal of the Chambers Judge’s decisions on the following grounds:
Analysis
Justice Fenlon, writing on behalf of the BCCA, found that, although the Chambers Judge correctly identified the relevant legal principles, they erred in their application. This error was made at least in part due to the fact that the Chambers Judge blended his assessment of undue influence, suspicious circumstances, and capacity, observing that the issues were interrelated. The BCCA found that such an approach to an analysis of a will’s validity should be avoided, with each individual issue being addressed step by step, giving the shifting burden of proof.
Issue 1: Suspicious Circumstances
The Appellant, in the initial hearing, had identified a number of suspicious circumstances in relation to the creation of the 2018 Will. These suspicious circumstances included:
The Chambers Judge found that the Respondent’s role in the preparation of the 2018 Will was not suspicious given the limited technical abilities of the Deceased, specifically that the Deceased did not have access to email or a cell phone to instruct Ms. Manvell. That, coupled with the Deceased’s affirmative testamentary capacity, resulted in what the Chambers Judge found to be not even a “miasma of suspicion.”[3]
The BCCA found that here the Chambers Judge made a number of palpable and overriding errors in his assessment of the evidence provided by the Appellant. First, he only focused on the logistics in communicating instructions given that the Deceased did not have email or a cell phone. In doing so, the BCCA found that the Chambers Judge failed to consider the involvement of the Respondent in conjunction with her role as a person in a position of trust who benefitted significantly from the changes to the will. Citing the BC Supreme Court decision of Laszlo v. Lawton,[4] the BCCA found that such circumstances are a common basis for establishing suspicious circumstances.
Additionally, the BCCA found that although the Chambers Judge correctly observed that the evidence must raise a specific and focused suspicion rather than a “general miasma”,[5] he failed to grapple with the specific suspicion raised by the appellant – that being the instrumental role of a trusted attorney in the preparation of a will that significantly increased bequests to herself to the detriment of the other beneficiaries.
While the presence of suspicious circumstances alone is not sufficient to prove undue influence such that a will shall be found invalid, it can be sufficient to set aside the presumption of validity of a given will. Here, the BCCA found that the specific circumstances involved in the preparation and execution of the 2018 Will did in fact rise to the level that would rebut the presumption of validity, and therefore the Respondent should have had the burden of proving the Deceased’s testamentary capacity, knowledge, and approval of the 2018 Will. This did not occur, and as such was a palpable and overriding error.
Issue 2: the Chambers Judge’s assessment of capacity, knowledge, and approval
As set out in Banks v. Goodfellow,[6] a will-maker has testamentary capacity if they:
The Chambers Judge found that the Deceased had the sufficient mental acuity to make a will in 2018, and the BCCA found no error in that conclusion on review of the evidence. The issue on appeal is whether the Deceased was aware of the magnitude of the Estate and therefore did not appreciate the size of the residue and the effect of dividing that residue among the beneficiaries. On the point, the Chambers Judge found that, given the Deceased’s previous dealings with Ms. Manvell and her prior knowledge of the extent of her estate, that at the time of the 2018 Will’s creation, the Deceased had sufficient knowledge of the extent and value of the Estate.
The BCCA held that this reliance on her prior knowledge was an error, and that relying on that evidence alone was insufficient to prove that the Deceased had sufficient knowledge at the time of the 2018 Will’s creation. The BCCA, citing Russell v. Fraser,[7] found that it must be shown that a testator is aware of the approximate value of the residue of their estate at the time of a will’s execution.
Given that a number of the Deceased’s assets were tied up in various investments, there was insufficient evidence provided to suggest that she was aware of the extent of her estate. Simply writing cheques and doing limited banking fell short of evidence that the Deceased had the sufficient knowledge required. As such, the BCCA found that the Respondent failed to meet the burden of proving the 2018 Will, and the 2018 Will was found to be invalid. An order was therefore made for the estate to be distributed in accordance with the 2001 Will.
Final Thoughts
A key aspect of this decision ultimately became the fact that Ms. Manvell did not confirm with Deceased that she was aware of the extent of her estate when executing the 2018 Will. In fact, it was Ms. Manvell’s testimony that it was not her regular practice to do so. Often, certain formalities such as this can easily go unattended. However, in this case, the absence of this step led to a difference of millions of dollars. Although suspicious circumstances alone cannot overturn a will, it is important to be wary of them, as their presence can open the door to a will being overturned on formalistic oversights, as evidenced by this decision. As an attorney, it is important to understand your role as a person in a position of trust and be vigilant about preventing even the appearance of suspicious circumstances. As evidenced by this decision, failing to do so may result in a vast departure from a testator’s stated intention.
—
[1] Kroeger v. Bush Estate, 2026 BCCA 16
[2] Wills, Estates and Succession Act, S.B.C. 2009, c. 13
[3] Supra note 1 at para 26
[4] Laszlo v. Lawton, 2013 BCSC 305 at para 207
[5] Clark v. Nash (1989), 61 D.L.R. (4th) 409 at 425, 1989 CanLII 2923 (B.C.C.A.)
[6] Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 at 565, 39 L.J.Q.B. 237 (U.K)
[7] Russell v. Fraser (1980), 118 D.L.R. (3d) 733, 1980 CanLII 737 (B.C.C.A.) at para 744
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