When A Will Is Set Aside: Key Lessons From Kroeger v. Bush Estate (2026 BCCA 16)

The British Columbia Court of Appeal's recent decision in Kroeger v. Bush Estate, 2026 BCCA 16, is a powerful reminder that a properly signed will is not always a valid will. Even when legal formalities under BC's Wills, Estates and Succession Act (WESA) are met, courts will closely examine how a will was made—especially where a will challenge in British Columbia involves changes that benefit someone in a position of trust, such as an executor or attorney under a power of attorney.

What Happened?

Helen Bush died in 2021, leaving an estate worth about $5 million. For nearly 20 years, her estate plan was straightforward: her estate would be divided equally among her 18 nieces and nephews, with each receiving roughly $275,000.

In 2018, shortly after her husband's death, Helen signed a new will that dramatically changed that plan:

• 14 nieces and nephews received only $5,000 each
• Four beneficiaries, including the executor who also held power of attorney, received the entire residue of the estate
• Each of those four stood to inherit about $1.2 million

Family members challenged the will, raising questions about will validity in British Columbia.

The Legal Issue: Suspicious Circumstances

Although the 2018 will was properly executed under the Wills, Estates and Succession Act, theBC Court of Appeal found serious “suspicious circumstances”—a key concept in estate litigation in BC.

When a will is properly executed, the court will presume that the will is valid. However, this presumption of validity can be displaced if the person challenging the will proves there were suspicious circumstances surrounding the preparation of the will or the testamentary capacity of the testator. The burden of proof then shifts to the person defending the will to prove the testator had testamentary capacity and knowledge and approval of its contents.

In this case, the suspicious circumstances included:

• A radical departure from a long-standing estate plan
• The executor and major beneficiary being instrumental in preparing the will
• Instructions given to the notary without direct confirmation from the testator
• A significant personal benefit flowing to someone in a fiduciary role

Why the Will Failed

The key issue was knowledge and approval—specifically, whether Helen Bush understood the magnitude of her estate and approved of the gifts she was making at the time the will was signed.

The Court found:

• No meaningful discussion with Helen about the value of her assets
• No evidence she approved of the distribution in the will, which would leave millions to four beneficiaries
• General competence and past financial awareness were not enough to prove Helen understood the magnitude of her estate

Without clear proof that the testator understood the value of the residue of the estate, the Court held that the 2018 will was not valid.

The Result

The Court of Appeal for British Columbia:

• Declared the 2018 will invalid
• Ordered the estate to be distributed under the earlier 2001 will
• Clarified that the decision did not imply dishonesty or undue influence—only a failure to meet the legal burden of proof

Key Takeaways

• Formal execution alone does not guarantee will validity in BC
• Wills benefiting a person in a position of trust, such as an attorney under a power of attorney, receive heightened scrutiny
• Testators must understand the approximate value of their estate, especially the residue
• Lawyers and notaries must independently confirm testamentary instructions with their clients

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.