A recent Saskatchewan Court of Appeal decision, Anderson & Company v. Pare, 2026 SKCA 107, highlights the complexities that can arise when questions of capacity, lifetime property transfers, and testamentary intentions intersect.

While the decision primarily concerns the disqualification of legal counsel who may be called as witnesses, the underlying dispute offers important lessons for families, estate planning professionals, and advisers in British Columbia. For individuals managing significant family assets or planning intergenerational wealth transfers, the case reinforces the importance of documenting intentions, assessing capacity at critical stages, and anticipating potential disputes before they arise.

What Happened in Anderson & Company v. Pare?

The dispute involved a woman who transferred farmland into joint ownership with her daughter before subsequently executing a will leaving her property to her husband. Following her death, the husband challenged the earlier transfer on the basis that his wife lacked capacity at the time, while maintaining that she had capacity when executing her will. The daughter disputed that position, arguing that her mother had capacity for the transfer but not the subsequent will.

The Saskatchewan Court of Appeal upheld the disqualification of the husband's legal counsel, finding a significant possibility that lawyers or staff from the firm would be required to provide material evidence concerning disputed issues. Although the Court did not determine the underlying capacity questions, the decision illustrates how estate planning transactions can generate overlapping disputes concerning capacity, ownership, and the role of legal advisers.

Why Does Capacity Matter Throughout the Estate Planning Process?

Capacity is not a single determination that necessarily applies to every transaction. The legal requirements for executing a will may differ from those governing lifetime gifts, property transfers, or other financial decisions. This distinction is particularly important where an individual's health or cognitive abilities fluctuate, or where significant transactions occur close together.

For British Columbia families, questions of capacity may arise alongside disputes concerning jointly held property, family businesses, and succession arrangements. Evidence supporting an individual's understanding and intentions at the time of each transaction can become critical if those decisions are subsequently challenged.

In British Columbia, testamentary capacity is generally assessed under the long-standing test from Banks v. Goodfellow, which asks whether the will-maker understood the nature and effect of making a will, the extent of their property, and the persons who might reasonably expect to benefit, and whether any disorder of the mind influenced the dispositions.

By contrast, capacity to make a significant lifetime gift or transfer depends on the nature of the transaction, and where a gift is substantial relative to the donor's estate, courts may require an understanding comparable to that needed for a will. Fluctuating capacity presents particular difficulties, as a document executed during a lucid interval may be valid even where the individual's capacity was impaired at other times, but the burden of demonstrating capacity at the relevant moment can be significant. Where suspicious circumstances surround the preparation of a will, the party propounding it may be required to affirmatively prove knowledge, approval, and capacity. Separately, section 52 of the Wills, Estates and Succession Act (WESA) places the onus on a person in a position of dependence or domination to show that undue influence was not exercised.

Common evidentiary challenges include incomplete medical records, retrospective expert opinions from professionals who never examined the individual, and conflicting accounts from family members with an interest in the outcome. Contemporaneous capacity assessments by a physician, together with detailed lawyer notes of the client's responses to open-ended questions, are often the most persuasive evidence available.

How Can Lifetime Transfers Create Estate Disputes?

Lifetime property transfers can be effective estate planning tools, but they may create uncertainty when the transferor's intentions are not clearly documented. In British Columbia, transferring property into joint ownership with an adult child can raise questions about beneficial ownership and whether the transfer was intended as a gift or for another purpose. The principles established in Pecore v. Pecore, 2007 SCC 17, may become relevant when determining the intended ownership of gratuitously transferred assets.

Disputes become particularly complex when an earlier transfer appears inconsistent with a subsequent will or other estate planning documents. For families with substantial real estate holdings, family-owned businesses, or blended family interests, coordinating lifetime transactions with broader estate and succession planning can help reduce uncertainty and competing expectations.

Joint ownership with an adult child is a common planning tool in British Columbia because jointly held property passes by right of survivorship outside the estate, which can avoid probate fees and fall outside a wills variation claim under section 60 of WESA. However, following Pecore, a gratuitous transfer to an adult child is presumed to create a resulting trust in favour of the transferor's estate, meaning the child must prove that a gift of the beneficial interest was intended. The BC Court of Appeal's decision in Bergen v. Bergen, 2013 BCCA 492, illustrates how courts examine the transferor's intention at the time of the transfer, including evidence from the lawyer who handled it.

These issues can also intersect with the Family Law Act. Property received by a spouse as a gift or inheritance from a third party is generally excluded property, although any increase in its value during the relationship may be divisible family property, and excluded property can lose its character if it is commingled or transferred into joint names with a spouse. In blended families, a lifetime transfer to children from a prior relationship may be challenged by a surviving spouse who expected to benefit, while intergenerational transfers of real estate or business interests may be scrutinized if a recipient child later separates from their own spouse. Clear documentation of whether a transfer is intended as a gift, a loan, or a trust arrangement, and coordination of that intention with the will, can significantly reduce the scope for later dispute.

When Can Estate Planning Counsel Become a Material Witness?

A central issue in Anderson & Company v. Pare was whether counsel's involvement in the underlying events created an evidentiary conflict that warranted disqualification. The Court's decision serves as a reminder that lawyers who advise on estate planning transactions may later possess material evidence concerning a client's capacity, intentions, or instructions.

Similar concerns can arise in British Columbia, where professional conduct obligations may limit a lawyer's ability to continue acting when their testimony becomes material to a proceeding. For estate planning professionals, maintaining contemporaneous records of instructions, capacity concerns, and the circumstances surrounding significant transactions can be important. Where litigation is anticipated, potential advocate-witness conflicts should also be identified early.

The Law Society of British Columbia's Code of Professional Conduct for British Columbia provides that a lawyer who appears as advocate must not testify or submit their own affidavit evidence before the tribunal unless permitted by the tribunal rules or the rules of court, or the matter is purely formal or uncontroverted. Where a drafting lawyer's evidence regarding instructions, capacity, or the circumstances of execution is likely to be contested, the lawyer and often their firm may be unable to act as litigation counsel. BC courts have also recognized that solicitor-client privilege does not prevent disclosure of a deceased client's wills file where the communications are relevant to determining the client's intentions in an estate dispute.

Practical measures to mitigate these conflicts include assessing at the outset whether the firm's lawyers or staff witnessed or participated in disputed transactions, referring litigation to independent counsel where a material witness issue is foreseeable, and ensuring that file notes are complete and objective so that the drafting lawyer's evidence can be given efficiently. Early identification of these issues can avoid the cost and delay associated with a contested disqualification application.

What Else Should Families, Executors, and Advisers Consider?

Families, executors, and professional advisers in British Columbia should also be mindful of strict timelines, including the 180-day limitation period from the grant of probate within which a spouse or child must commence a wills variation claim under WESA. Executors should consider whether any assets passing outside the estate, such as jointly held property or designated accounts, may be subject to a resulting trust claim, and should obtain independent legal advice before distributing assets where a dispute is reasonably anticipated.

Will-makers who wish to depart from what a court might consider adequate provision for a spouse or children should record their reasons in writing, as such reasons may be considered in a wills variation proceeding. Individuals should also consider putting in place an enduring power of attorney and a representation agreement so that trusted persons can manage financial and personal affairs if capacity declines, reducing reliance on court applications. Finally, where a will is defective in form, section 58 of WESA permits the court to give effect to a document that represents the deceased's deliberate or fixed and final intentions, which makes well-preserved records of testamentary wishes particularly valuable.

Key Takeaways for British Columbia Families and Advisers

Although Anderson & Company v. Pare arose outside British Columbia, the underlying issues are relevant to estate and family property disputes across Canada. Families and their advisers should consider several practical safeguards:

• Assess capacity at relevant stages. Different transactions may engage distinct legal requirements, particularly where health or cognitive circumstances change.
• Document intentions clearly. Maintain records explaining significant gifts, ownership changes, and departures from earlier estate plans.
• Coordinate estate and family property planning. Review lifetime transfers, wills, and ownership structures together to identify potential inconsistencies.
• Anticipate evidentiary challenges. Consider whether professionals involved in preparing estate documents may later be required to provide evidence.

Ultimately, the decision underscores the importance of approaching estate planning with an understanding of how family relationships, property ownership, and potential litigation intersect. For British Columbia families and advisers, proactive planning and careful documentation can help preserve intended wealth transfers, reduce uncertainty, and mitigate the risk of costly disputes. For guidance on estate disputes, family property matters, and succession-related concerns, contact our Canadian Family Practice.