Two recent decisions from the British Columbia Court of Appeal, Kroeger v. Bush Estate, 2026 BCCA 16, and Lewis v. Jack, 2026 BCCA 18, provide timely guidance on two recurring pressure points in estate law: the validity of a will at the moment of execution, and the vesting of gifts during administration. Although the cases address distinct issues, they collectively reinforce the court’s consistent approach to scrutinizing both the creation and the later administration of testamentary documents.
Kroeger focuses on will validity, capacity, and suspicious circumstances, clarifying the evidentiary burden required when the surrounding facts cast doubt on whether a testator knew and approved the contents of their will. Lewis turns to the interpretation of vesting provisions and illustrates how delays in administration or intervening events (such as the death of a beneficiary) can alter the ultimate distribution of an estate.
Read together, the decisions underscore the same core message: careful process, precise drafting, and disciplined record‑keeping are essential from the moment a will is prepared through to the completion of administration. These cases also highlight how choices made at execution and during planning often determine the outcome of disputes years later, and they reinforce the importance of drafting that anticipates appellate scrutiny.
Will Validity and Capacity
Heightened Scrutiny Where Suspicious Circumstances Exist
In Kroeger v. Bush Estate, 2026 BCCA 16, the court revisited key principles governing testamentary capacity and the role of suspicious circumstances. Although a duly executed will is ordinarily presumed valid, that presumption may be set aside when surrounding facts raise legitimate concerns about the testator’s capacity or intent.
The Court of Appeal confirmed that a beneficiary’s involvement in the will‑making process does not, on its own, invalidate the instrument. Nonetheless, such involvement will often amount to a suspicious circumstance, shifting the evidentiary burden to the propounder of the will. In those situations, the propounder must provide clear and cogent evidence that the testator had capacity at the time of execution and that they knew and approved of the will’s contents.
The decision also underscores that capacity disputes typically turn less on medical evidence than on the strength and clarity of the planning record. Appellate review frequently examines whether the drafting process created a defensible evidentiary trail that anticipates later scrutiny. When viewed years after execution, deviations from standard practice, unequal distributions, or beneficiary involvement often take on added significance.
Overall, the case highlights the need for contemporaneous and robust documentation in situations where a will departs from prior intentions or benefits someone involved in its preparation, and it clarifies the evidentiary standard appellate courts expect when suspicious circumstances are alleged.
Vesting and Interpretation
Timing Matters
In Lewis v. Jack, 2026 BCCA 18, the court considered will interpretation and the principles governing when a beneficiary’s interest vests, an issue that became decisive when a beneficiary survived the testator but died before the estate was distributed.
Applying established interpretive principles, the court reiterated that vesting turns on the wording of the will and the testator’s objectively ascertainable intention. Where the terms of the will postpone vesting, a beneficiary’s death before distribution may change the ultimate destination of the gift, even if the outcome diverges from familial expectations or common assumptions about entitlement.
The decision highlights how vesting disputes often emerge when estate administration takes longer than anticipated. Delays related to tax clearance, liquidity constraints, market conditions, or other claims can postpone distribution and increase the likelihood that intervening events, such as the death of a beneficiary, will affect who ultimately receives a gift. In this context, clear and precise vesting language provides certainty and reduces the need for judicial interpretation.
Overall, the case underscores that vesting provisions are central to determining entitlement and should not be viewed as technicalities. Ambiguity carries risks for both executors and beneficiaries, and careful drafting remains the most effective way to prevent disputes during the administration process.
What This Means for Estate Planning and Administration
Taken together, these decisions illustrate a consistent appellate stance: courts will not dilute evidentiary or interpretive standards to compensate for shortcomings in planning or drafting. Wills are examined with close attention to the execution process, the clarity of the language used, and the strength of the underlying record. For clients and practitioners, the cases serve as a reminder that estate planning decisions are often scrutinized many years later in contentious proceedings, and that executors must administer estates within a framework that prioritizes textual precision and established legal principles, even when the resulting outcomes may be unexpected. Disciplined planning, thorough documentation, and careful drafting remain the most effective ways to reduce uncertainty, prevent conflict, and manage cost.
Will execution should be approached as the creation of a future evidentiary record capable of withstanding litigation. Capacity assessments and the broader planning process must be robust enough to satisfy appellate scrutiny where suspicious circumstances are alleged. Vesting provisions should be drafted with an appreciation for potential delays in administration and the possibility that beneficiaries may die before distribution. Ultimately, clear and precise language minimizes interpretive risk and protects both the estate and its fiduciaries from unnecessary exposure.