Kroeger v. Bush Estate, 2026 BCCA 16
A recent decision from the British Columbia Court of Appeal provides an important warning about the risks that arise when a beneficiary who also holds a power of attorney becomes involved in changing a Will.
In Kroeger v. Bush Estate, the Court overturned a Will that dramatically changed the distribution of a $5 million estate. The case highlights how easily “suspicious circumstances” can arise, even where there is no direct finding of undue influence or dishonesty.
The Facts
Helen Bush died in 2021 at age 92. Her estate was worth approximately $5 million.
For many years, Mrs. Bush had a straightforward estate plan. Her 2001 Will divided the residue of her estate equally among her 18 nieces and nephews. Each beneficiary would have received roughly $275,000.
After her husband died in 2018, however, a new Will was prepared.
The changes were dramatic.
Under the 2018 will:
- 14 nieces and nephews were reduced to gifts of only $5,000 each;
- the residue of the estate was left to one niece, Sandra Rodrigues, and her three siblings;
- each of those four beneficiaries stood to inherit approximately $1.2 million.
The issue was not simply the size of the gifts. Ms. Rodrigues also held a power of attorney for Mrs. Bush and played a significant role in arranging the preparation of the new will.
According to the Court, she:
- contacted the notary public;
- supplied the earlier will;
- prepared handwritten instructions for the changes;
- communicated with the notary during drafting;
- arranged the appointment; and
- drove Mrs. Bush to execute the will.
The Trial Decision
The trial Judge initially upheld the 2018 will.
The Court found that the will complied with the formal requirements of British Columbia legislation and concluded there was no undue influence or suspicious circumstances sufficient to invalidate the will.
However, the dispute did not end there.
The Court of Appeal Reverses the Decision
The British Columbia Court of Appeal allowed the appeal and declared the 2018 Will invalid.
Importantly, the Court stressed that suspicious circumstances do not require proof of fraud, coercion, or wrongdoing. Instead, suspicious circumstances can simply shift the burden of proof onto the person attempting to uphold the will.
The Court identified several concerning factors:
- the dramatic departure from Mrs. Bush’s longstanding estate plan;
- the involvement of a major beneficiary in preparing the Will;
- the fact that the beneficiary held a power of attorney;
- the enormous financial benefit flowing to that beneficiary and her siblings; and
- the lack of evidence explaining why Mrs. Bush changed her intentions so drastically.
The Court emphasized that when a person in a position of trust helps arrange a will that substantially benefits them, courts must carefully scrutinize the circumstances.
The Importance of Understanding the Estate
One of the most important issues in the case was whether Mrs. Bush truly understood the magnitude of the gifts being made.
The notary public admitted that:
- she did not review the value of the estate with Mrs. Bush;
- she did not discuss the approximate value of the residue;
- she generally did not inquire into the size of clients’ estates when preparing wills; and
- she relied largely on her impression that Mrs. Bush understood her finances.
The Court of Appeal found this was not enough.
Where an interested party is involved in preparing a Will, the Court held there must be positive evidence that the testator understood the extent of the estate and the effect of the distribution being made.
Simply knowing a person has investments or owns property is not sufficient. The testator must appreciate the approximate magnitude of the gift at the time the Will is executed.
Because that evidence was missing, the Court found the 2018 Will had not been properly proven.
The result was significant: the 2018 will was declared invalid, and the estate was distributed under the earlier 2001 Will.
Why This Case Matters
This decision is an important reminder for estate lawyers, notaries, attorneys for property, and families alike.
When a beneficiary is involved in changing a Will, especially where that person also holds a power of attorney, Courts will examine the circumstances very closely.
Practical safeguards include:
- ensuring the testator gives instructions directly to the drafting professional;
- minimizing beneficiary involvement in the drafting process;
- carefully documenting discussions about assets and intended distributions;
- obtaining medical evidence where appropriate; and
- ensuring the testator fully understands the size and effect of the gifts being made.
Even where no improper conduct is proven, the appearance of suspicious circumstances may be enough to shift the burden of proof and ultimately invalidate the Will.
Brian Madigan LL.B., Broker
www.OntarioRealEstateSource.com