Kroeger v. Bush Estate (2026 BCCA 16)
The decision in Kroeger v. Bush Estate is a reminder that Courts will closely scrutinize Wills where the circumstances surrounding their preparation raise legitimate concerns, for example when a beneficiary is heavily involved and stands to gain significantly.
Helen Bush died in 2021 at the age of 92, leaving behind an estate valued at approximately $5 million. For many years, her testamentary intentions were clear. Under a 2001 Will, the residue of her estate was to be divided equally among her 18 nieces and nephews, with each receiving a substantial inheritance.
However, in 2018, shortly after the death of her husband, a new Will was prepared that dramatically altered this distribution. Under this later Will, 14 of the nieces and nephews were left just $5,000 each, while the executor, who also held a power of attorney, and her three siblings were to share the bulk of the estate, receiving approximately $1.2 million each.
Not surprisingly, this drastic change led to a legal challenge.
At trial in the Supreme Court of British Columbia, the Judge upheld the 2018 Will. The Court found that the Will had been properly executed, that there were no suspicious circumstances, and that Helen Bush had the necessary testamentary capacity and understanding of her estate.
But the Court of Appeal for British Columbia saw things very differently.
On appeal, the central issue was not simply whether Helen Bush had capacity in the general sense, but whether the surrounding circumstances were sufficiently suspicious to displace the usual presumption that a properly executed Will is valid.
The Court emphasized that where such suspicion arises, the burden shifts to the party seeking to uphold the Will to prove that the testator truly understood and approved of its contents.
In this case, the Court of Appeal found that the trial Judge failed to properly deal with several critical red flags.
- First, the executor, who stood to benefit enormously was deeply involved in the preparation of the Will. She provided the instructions to the notary, drafted the list of changes, and effectively controlled the communication process. While acting under a power of attorney can justify some level of assistance, the combination of influence and personal benefit required careful scrutiny.
2) Second, the changes themselves were extreme. A longstanding intention to divide the estate equally among 18 beneficiaries was replaced with a structure that overwhelmingly favoured just four individuals. Such a significant departure, without a clear and independent explanation from the testator, raised legitimate concerns.
3) Third, and perhaps most importantly, there was insufficient evidence that Helen Bush understood the true extent of her estate or the magnitude of the gifts being made. The notary did not review the value of the assets with her, nor was there any meaningful discussion about the size of the residue. The Court made it clear that a general awareness of having “substantial assets” is not enough. A testator must have a real appreciation of what they are giving away particularly when the residue is large.
Because these suspicious circumstances were present, the presumption of validity no longer applied. The burden shifted to the executor to prove that Helen Bush had the necessary knowledge and approval of the will. On the evidence, that burden was not met.
Importantly, the Court of Appeal was careful to note that its decision did not amount to a finding of wrongdoing or undue influence. Rather, the case turned on a failure of proof. The legal standard required clear and convincing evidence that the testator understood the nature and consequences of the Will, and that standard was not satisfied.
As a result, the appeal was allowed. The 2018 Will was declared invalid, and the estate was ordered to be distributed in accordance with the earlier 2001 Will.
This case offers several important lessons for estate planning and litigation. Where a beneficiary is involved in the preparation of a Will, especially one who holds a position of trust such as a power of attorney, Courts will expect clear, independent evidence that the testator’s intentions were fully informed and freely made. Legal professionals must take care to ensure that instructions come directly from the testator and that there is a documented understanding of the nature and value of the estate.
Significant and unexplained changes to a Will, particularly late in life, can invite disputes and ultimately lead to the Will being set aside.
In the end, Kroeger v. Bush Estate reinforces a fundamental principle: a Will is only valid if it truly reflects the informed and independent intentions of the person making it.
Brian Madigan LL.B., Broker
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