When Family Participation in Estate Planning Becomes a Problem: Kroeger v. Bush Estate

The British Columbia Court of Appeal recently revisited one of the most litigated issues in estate disputes: what happens when a beneficiary is deeply involved in the creation of a will that heavily favours them.

In Kroeger v. Bush Estate, 2026 BCCA 16, the Court invalidated a late-life will that redistributed a multimillion-dollar estate among a small group of beneficiaries. The decision provides an important discussion of suspicious circumstances, evidentiary burdens, and the level of scrutiny courts apply when vulnerable testators make substantial changes to longstanding estate plans.

A Longstanding Distribution Scheme

The deceased had no children and maintained close relationships with an extended network of nieces and nephews. Earlier testamentary documents reflected an intention to distribute her estate broadly among family members.

A will signed in 2001 provided that, after certain specific gifts, the remainder of the estate would ultimately be shared equally among 18 nieces and nephews if her husband predeceased her.

Years later, the deceased’s circumstances changed considerably. Her husband developed dementia and eventually entered residential care. Around that period, powers of attorney were granted to certain family members to assist with financial and personal affairs. Following the husband’s death in 2018, the deceased became sole owner of substantial assets.

A New Will with Very Different Results

Later that same year, a new will was prepared. The revised estate plan dramatically narrowed the class of beneficiaries who would receive meaningful inheritances. Most nieces and nephews were reduced to modest fixed gifts, while the residue of the estate was directed to four siblings, including the individual appointed as executor.

Given the size of the estate at the time of death, the residual beneficiaries stood to inherit amounts exceeding one million dollars each. Evidence before the Court showed that one of those beneficiaries took an active role in the process leading to the preparation of the will. Communications with the notary and delivery of written instructions regarding desired amendments became important features of the later litigation.

Litigation Over the Validity of the Will

After the deceased passed away in 2021, the later will was challenged. The trial judge upheld the 2018 document. On appeal, however, the Court of Appeal reached the opposite conclusion. The central issue was not whether the will had been formally executed properly. Rather, the dispute focused on whether the surrounding circumstances undermined confidence that the deceased truly understood and approved the testamentary changes being made.

Suspicious Circumstances and the Burden of Proof

The Court of Appeal reaffirmed that suspicious circumstances can arise in many ways, including:

  • involvement of a beneficiary in the preparation of a will;
  • substantial deviations from previous estate plans;
  • dependency relationships;
  • or evidence suggesting diminished understanding.

Where suspicious circumstances exist, the normal presumption that a duly executed will is valid no longer automatically applies. Instead, the party seeking to uphold the will must positively establish that the testator possessed the necessary knowledge, approval, and testamentary capacity. In this case, the Court concluded that the surrounding facts were sufficiently concerning to shift that burden.

Why the Evidence Was Insufficient

The Court found there was inadequate evidence demonstrating the deceased appreciated the practical effect of the revised distribution scheme.

Particularly significant was the absence of reliable evidence showing she understood:

  • the size of the estate;
  • the value of the residue;
  • and the financial consequences of reallocating the bulk of the estate to only four beneficiaries.

The Court also criticized aspects of the evidentiary analysis at first instance, finding the trial judge failed to properly weigh the implications of the executor-beneficiary’s involvement. Ultimately, the Court held that the propounders of the will failed to prove the deceased’s knowledge and approval of the 2018 will. The document was therefore declared invalid, with the earlier testamentary arrangements governing the distribution of the estate instead.

What Does this Mean for Estate Litigation?

Although assisting an elderly relative with legal arrangements is not inherently improper, courts are alert to situations where:

  • a beneficiary drives the estate planning process;
  • independent legal advice is limited or unclear;
  • or a vulnerable testator makes abrupt and substantial changes benefiting those involved in the preparation process.

The case also underscores the importance of detailed solicitor or notary records. Where a will significantly alters prior intentions, contemporaneous evidence explaining the testator’s reasoning and understanding may become critical if litigation later arises.

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