It is common for a friend or relative to help a senior make the trip to a lawyer’s office to make a new will. It is also common for someone to assist that senior by receiving draft documents by email, if the senior is not comfortable with the technology. However, it is all too easy to cross a line into creating the perception of undue influence on the senior, which can cast doubt on that new will.

This was the scenario that arose in Kroeger v. Bush Estate, 2026 BCCA 16. In that case, the niece of the will-maker provided the initial instructions to a lawyer for a new will. The niece also answered some of the lawyer’s questions about the will, rather than the lawyer speaking with the will-maker directly.

The Court of Appeal found that the niece’s significant involvement in the estate planning process gave rise to “suspicious circumstances”.

What are “suspicious circumstances”?

Normally, the court can rely on the fact that a will was signed properly to find that a will is valid, if there is no evidence to the contrary. However, when “suspicious circumstances” arise, the court has to examine the matter more closely and the executor must provide additional evidence to show that the will-maker had the mental capacity to make the will and did so of their own free will.

Suspicious circumstances arise in relation to the preparation of the will, the mental capacity of the will-maker, or evidence of coercion or fraud.

In the Kroeger case, the suspicious circumstances arose from the niece’s involvement in the preparation of the will. The court did not find that the niece had actually done anything underhanded or nefarious. However, because of her significant involvement in the estate planning process, the court needed to use a stricter standard to assess the will-maker’s mental capacity. There was not enough evidence to show that the will-maker met that higher standard.

There are two lessons in this case, one for the friends and relatives of elderly individuals trying to assist in their estate planning and one for lawyers.

If a senior asks you for assistance in meeting with a lawyer about their will, you should keep your involvement as limited as possible. Driving them to an appointment they have arranged is both helpful and appropriate. However, the more you involve yourself in matters such as planning the meeting, reviewing the will or passing on information about what will be part of the will, the more likely that you will create suspicious circumstances.

For lawyers, our job is to make sure that we are allowing the senior to express their wishes for their estate planning directly to us as much as possible. It is our job to listen and to provide suggestions to accomplish the client’s wishes to the greatest extent possible. We also assess their mental capacity independently and take the necessary steps to preserve the proof of their ability to make a will.