Kroeger v. Bush Estate

2026 BCCA 16 Kroeger v. Bush Estate COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Kroeger v. Bush Estate, 2026 BCCA 16 Date: 20260120 Docket: CA49709 Between: Irene Kroeger Appellant (Respondent) And Sandra Anne Rodrigues, Executrix of the Estate of Helen Bush, Deceased Respondent (Applicant) And Brenda Christianson Respondent Before: The Honourable Madam Justice Fenlon The Honourable Justice Fleming The Honourable Justice MacNaughton On appeal from: An order of the Supreme Court of British Columbia, dated January 30, 2024 (Bush Estate (Re), 2024 BCSC 375, Vancouver Docket V220082). The Appellant, appearing in person: I. Kroeger Counsel for the Respondent, Sandra Anne Rodrigues, Executrix of the Estate of Helen Bush, Deceased: J.M.C. Kennedy The Respondent, appearing in person: B. Christianson Place and Date of Hearing: Vancouver, British Columbia September 15, 2025 Place and Date of Judgment: Vancouver, British Columbia January 20, 2026 Written Reasons by: The Honourable Madam Justice Fenlon Concurred in by: The Honourable Justice Fleming The Honourable Justice MacNaughton Summary: The appellant challenges the decision of a chambers judge accepting as valid a will executed by the deceased in 2018. This will differed significantly from the deceased's earlier will executed in 2001. The 2001 will left the residue of the estate equally to the deceased's 18 nieces and nephews, such that each would receive around $275,000. Under the 2018 will, 14 nieces and nephews received only $5,000 each, while the respondent executor who held power of attorney and her three siblings would each receive close to $1.2 million. Held: Appeal allowed. The judge failed to grapple with evidence of suspicious circumstances, including the respondent's role in helping to prepare a will that significantly benefited her and her siblings. This evidence negated the presumption of validity and shifted the burden to the respondent to prove testamentary capacity, knowledge and approval. The evidence relied on by the judge was not capable of establishing that the deceased understood the value of her estate and the magnitude of the residue. The 2018 will is therefore not valid and the estate is to be distributed according to the 2001 will. Reasons for Judgment of the Honourable Madam Justice Fenlon: [1] The appellant, Irene Kroeger, challenges the decision of a chambers judge to accept as valid a will executed by her sister, Helen Bush, in 2018--a will that was a marked departure from an earlier, longstanding will that left the residue of the estate equally to her 18 nieces and nephews. Background [2] Helen Bush was born in 1929 and died in 2021 at the age of 92. She married Arthur "Chris" Bush when she was in her early 40s, a marriage that ended on his death 48 years later. The couple had no children. [3] Helen had a grade 8 education. Chris had a degree in civil engineering and was an investor in real property, stocks and bonds. On his death, his entire estate passed to Helen, whose estate at the time of her death was valued at about $5 million. [4] A few years before Chris died in 2018, he began to exhibit signs of dementia and eventually entered a care home. In 2017, the couple granted powers of attorney to their niece, the respondent executor, Sandra Rodrigues (who is a Certified Professional Accountant), and to her brother, so that they could assist in managing the Bushes' financial affairs. [5] In November 2018, three months after Chris died, Ms. Rodrigues contacted Katherine Manvell, the notary public who had acted for the Bushes since 2006 and had prepared the powers of attorney in 2017. Ms. Rodrigues asked Ms. Manvell to prepare a new will for Mrs. Bush, sending along a copy of her aunt's 2001 will and a handwritten list of changes to be made. The list was written by Ms. Rodrigues, but signed by Mrs. Bush. [6] Ms. Manvell drafted the will in accordance with those instructions. She did not speak to Mrs. Bush or confirm the instructions with her before preparing the will. When an issue arose concerning how the executor's compensation should be characterized, Ms. Manvell asked Ms. Rodrigues, rather than Mrs. Bush. Ms. Rodrigues directed Ms. Manvell to provide for a gift in order to avoid the taxes she would otherwise have to pay on executor's fees. [7] The changes to the 2001 will (inclusive of a codicil made on May 21, 2015) were significant. The earlier will left everything to Chris, and if he died first, personal belongings were to go to Mrs. Bush's sisters and $1,000 was to go to her church, with the residue to be divided equally among her 18 nieces and nephews. [8] In contrast, the 2018 will removed the bequest to Mrs. Bush's sisters, added a $1,000 bequest to a close friend, and made specific bequests of $5,000 to each of her nieces and nephews--other than Ms. Rodrigues and her three siblings, who were to divide among themselves the residue of the estate. In the result, whereas each of the nieces and nephews were to receive roughly $275,000 under the 2001 will, under the 2018 will, 14 of them would each receive $5,000, while Ms. Rodrigues and her three siblings would each receive close to $1.2 million. The proceedings below [9] Mrs. Kroeger filed a notice of dispute challenging the validity of the 2018 will, as did Brenda Christianson, one of the nieces who is a beneficiary of a $5,000 bequest under that will. Eventually, Ms. Rodrigues filed an application to prove the will in solemn form. [10] The matter originally proceeded before the chambers judge on November 29, 2023, on the basis of affidavit evidence. After the parties made their closing arguments, the judge concluded that the affidavit sworn by Ms. Manvell was insufficient to permit him to decide the issues on the application. The body of that affidavit is set out in full below: 1. That I was the Notary Public who generated and witnessed the last Will and Testament (the "Will") bearing the date of November 14, 2018 of Helen Bush (the "Deceased"). The Deceased had given her written instructions to me regarding the Will. Attached to this affidavit and marked as Exhibit 'A' is copy of the written instructions. 2. I was in compliance with the Wills, Estates and Succession Act when the Will was generated and executed with the Deceased, who had signed and dated her written instructions to me, as of November 3, 2018. 3. The Deceased knew and approved the contents of her Will and that she had testamentary capacity. The Deceased signed the Will in front of myself and Stephanie Rozario (Executive Director) as witnesses. No other person(s) were present or in the room at the time of signing. [11] The judge adjourned the hearing to permit cross-examination of Ms. Manvell on her affidavit. That cross-examination took place before the judge on December 21, 2023. On January 30, 2024, the parties made supplementary submissions, and the judge then rendered oral reasons for judgment that same day. [12] The judge found that the 2018 will had been executed in compliance with the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA], that there was no undue influence or suspicious circumstances, and that the deceased had sufficient knowledge of the extent and value of her estate. He therefore deemed the 2018 will proved in solemn form. He declined Ms. Rodrigues' application for special costs payable by the respondent beneficiaries. Instead, he awarded special costs payable by the estate, finding that the significant differences between the 2001 and 2018 wills made the dispute over the validity of the will a reasonable one. On appeal [13] The appellant raises a number of grounds of appeal which I would reframe as follows: 1. Did the judge err in concluding that there were no suspicious circumstances? 2. Did the judge err in concluding that the deceased had sufficient knowledge of the extent and value of her estate when she executed the 2018 will? [14] Whether the circumstances surrounding the making of a will are sufficiently suspicious to rebut the presumption of testamentary capacity is a question of mixed fact and law reviewable on a deferential standard of palpable and overriding error, unless there is an extricable question of law, which is subject to review on a standard of correctness: Wilton v. Koestlmaier, 2019 BCCA 262 at para. 22; Housen v. Nikolaisen, 2002 SCC 33 at paras. 26-28, 37. [15] Whether the deceased had a sufficient understanding of the extent and value of her estate when she executed the will is a question of fact reviewable on a palpable and overriding error standard: Field v. James, 2001 BCCA 267 at paras. 69, 71; Housen at para. 10. Analysis [16] It is helpful to begin, as the judge did, with the framework for determining whether a will has been proved in solemn form. I can do no better than Justice Dardi's summary of the applicable legal principles in Leung v. Chang, 2013 BCSC 976: [26] In an action for proof of will in solemn form, the party propounding the will must prove on a balance of probabilities that the will was executed in compliance with the statutory formalities, that the will-maker knew and approved of the contents of the will and that the will-maker had testamentary capacity: Vout at paras. 19-20. [27] In order to make a valid will, the will-maker must have a "baseline level of mental acuity" or a "disposing mind and memory", sufficient to appreciate and comprehend the nature and effect of the essential elements of the testamentary act. This encompasses an appreciation of the claims of the persons who are the natural objects of her estate and the extent of her property of which she is disposing: Laszlo v. Lawton, 2013 BCSC 305 at para. 185; Banks v. Goodfellow (1870), L.R. 5 Q.B. 549; Leger v. Poirier, [1944] S.C.R. 152 at 161. The assessment of whether a will-maker possesses testamentary capacity is a highly individualized inquiry and is a question of fact to be determined in all the circumstances: James v. Field, 2001 BCCA 267 at para. 51; Laszlo at para. 197. [28] In certain circumstances, the propounder of the will, in discharging the burden of proof, is aided by a rebuttable presumption of validity. If the will was duly executed in accordance with the requisite statutory formalities after being read over to or by a testator who appeared to understand it, it is presumed the testator possessed the requisite testamentary capacity and knew and approved of its contents: Vout at para. 26. [29] This presumption may be rebutted by evidence of "well-grounded suspicions", referred to in the jurisprudence as "suspicious circumstances", relating to one or more of the following circumstances: (i) surrounding the preparation of the will; (ii) tending to call into question the capacity of the will-maker; or (iii) tending to show that the free will of the will-maker was overborne by acts of coercion or fraud: Vout at para. 25. [30] If suspicious circumstances are established, then the presumption is spent and the legal burden of proof reverts to the propounder of the will. The propounder of the will then reassumes the legal burden of proving knowledge and approval, as well as proving testamentary capacity, if the suspicious circumstances reflect on the mental capacity of the will-maker to make a will: Woodward v. Grant, 2007 BCSC 1192 at para. 108. In order to discharge the burden, the propounder of the will is required to dispel the suspicious circumstances that have been raised: Ostrander v. Black (1996), 12 E.T.R. (2d) 219 at para. 30 (Gen. Div.). [Emphasis added.] [17] Although the judge below correctly identified these legal principles, in my respectful view he erred in their application--at least in part because he blended his assessment of undue influence, suspicious circumstances and capacity, observing that the issues "are interrelated": at para. 16. That approach is to be avoided. The issues should be addressed step-by-step, in keeping with the shifting burden of proof: Laszlo v. Lawton, 2013 BCSC 305 at paras. 200-207; Geluch v. Geluch Estate, 2019 BCSC 2203 at paras. 110-115. [18] In the present case, it was common ground that the formalities set out in the WESA had been met. The issue before the judge was whether the resulting presumption of validity should be negated because of suspicious circumstances. The appellant contends the judge erred at this stage of the assessment. I turn now to that first ground of appeal. 1. Did the judge err in his assessment of suspicious circumstances? [19] In the hearing below, the appellant identified a number of suspicious circumstances. First, the 2018 will was a marked departure from both Mrs. Bush's and Chris Bush's stated intentions to benefit their 18 nieces and nephews equally--an intention expressed in the 2001 will. [20] Second, there was no explanation offered by Ms. Rodrigues or anyone else as to how Mrs. Bush's decision to change her will came about. Ms. Rodrigues' evidence related only to a potential justification for the change: she and her siblings lived close to the Bushes' home and therefore had more frequent contact with them, especially in their later years. [21] Third, Ms. Rodrigues was instrumental in the preparation of the new will; she wrote out a list of the changes to be made, provided all instructions to Ms. Manvell, arranged the appointment, and drove her aunt to the appointment to execute the will. [22] Fourth, the changes greatly benefitted Ms. Rodrigues and her three siblings, who would each receive $1.2 million--a far greater share of the estate than under the 2001 will. [23] Fifth, when Ms. Rodrigues applied to probate the 2018 will, causing the other nieces and nephews to ask for a copy of the deceased's earlier will, Ms. Rodrigues informed them through her lawyer that she was unaware of the existence of an earlier will, when in fact she had provided a copy of the 2001 will to the notary along with the instructions for the preparation of the new will. [24] In addressing the issue of suspicious circumstances, the judge said: [32] I find nothing suspicious in the fact that Ms. Rodrigues was the primary liaison in the drafting and execution of the 2018 will. Mrs. Bush did not have a computer, let alone an email account. It made perfect sense for Ms. Rodrigues to make the initial communications with Ms. Manvell, and forward the annotated 2001 will with the changes requested by Mrs. Bush. Indeed, that is generally why one provides a power of attorney, to assist in day-to-day transactions, as well as important transactions such as a will revision. [25] As to the email exchange between Ms. Rodrigues and the notary concerning whether the executor's compensation should be characterized as a bequest or a fee (an exchange which did not include any reference to the deceased's wishes on this point), the judge said: [33] I am satisfied that the email exchange simply reflects Ms. Rodrigues's practical professional decision to waive what would be a modest executor fee, as the most tax advantageous manner of addressing the issue. [34] Further, Ms. Rodrigues's practical instruction with respect to the mechanics of the will does not represent a usurpation of Mrs. Bush's testamentary powers. Again, such technical decisions fall within the reasonable role of a person entrusted with a power of attorney. Indeed, Ms. Rodrigues's professional designation as a CPA, and her ability to assist Mrs. Bush with tax matters, is likely one reason her aunt named her as her attorney. [26] The judge concluded his analysis on the issue of suspicious circumstances by saying: [35] I return to the frequently cited phrase in the jurisprudence: that the party contesting a will must raise more than a "miasma of suspicion." I am satisfied that the respondents have not raised even a miasma of suspicion. Even if they had, such a miasma has been more than adequately and, indeed, strongly dissipated and evaporated by the affirmative evidence of Mrs. Bush's testamentary capacity, and the lack of any compelling suspicious circumstances surrounding the drafting and execution of the 2018 will. [27] In my respectful view, the judge made palpable and overriding errors in his assessment of the evidence. First, he focussed only on the logistics of communicating testamentary instructions, which he found "made perfect sense", since Mrs. Bush did not have access to email. However, the appellant relied on more than Ms. Rodrigues' involvement in the preparation of the will. It was that involvement in combination with her role as a person in a position of trust who benefitted significantly from the changes to the will that the appellant pointed to, contending these facts established suspicious circumstances warranting the setting aside of the presumption of validity. [28] The circumstances the appellant relied on are a common basis for establishing suspicious circumstances, as Justice Ballance noted in Laszlo: [207] Suspicious circumstances have been found to exist in a wide array of situations and are not necessarily sinister in nature. There is no checklist of circumstantial factors that will invariably fit the classification. Commonly occurring themes include where a beneficiary is instrumental in the preparation of the will (especially where the beneficiary stands in a fiduciary position to the testator) [Emphasis added.] [29] In Harmes v. Hinkson, [1946] 3 D.L.R. 497 at 509, 1946 CanLII 298 (U.K P.C), the Judicial Committee of the Privy Council, citing Barry v. Butlin (1838), 2 Moo. P.C. 480, 12 E.R. 1089, put it this way: [I]f a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased. [30] Second, in addressing the import of the exchange between Ms. Rodrigues and the notary about the executor's compensation, the judge found no basis for suspicion because it made sense for Ms. Rodrigues, as a Certified Professional Accountant who could "assist Mrs. Bush with tax matters," to decide the technical question about how best to characterize the compensation. However, the appellant's point was not whether Ms. Rodrigues could advise Mrs. Bush on how to proceed. It was, rather, whether Ms. Rodrigues or the notary should have obtained the deceased's instructions on this point. In other words, the appellant submitted that the conduct demonstrated a pattern of Ms. Rodrigues giving instructions to the notary without Mrs. Bush's involvement. [31] Third, although the judge correctly observed that the evidence the challenger points to must raise a "specific and focused suspicion" rather than a "general miasma" (Clark v. Nash (1989), 61 D.L.R. (4th) 409 at 425, 1989 CanLII 2923 (B.C.C.A.)), he did not grapple with the specific and focussed nature of the suspicion raised by the appellant in this case: the instrumental role of a trusted power of attorney in the preparation and execution of a will that significantly increased bequests to herself and her three siblings to the detriment of the other nieces and nephews who benefitted under the 2001 will. [32] It must be remembered that the party challenging the will at this stage of the proceeding is not required to prove on a balance of probabilities that fraud or undue influence occurred. Their burden is merely to point to "some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity": Vout v. Hay, [1995] 2 S.C.R. 876 at para. 27, 1995 CanLII 105; Maddess v. Estate of Johanne Gidney, 2009 BCCA 539 at para. 31 (emphasis added). Thus, the question before the judge is not whether the will is invalid. It is, rather, whether the presumption of validity should be set aside given the circumstances of the making of the will, thereby putting the propounder of the will to the proof of the testator's capacity, knowledge and approval: Vout at paras. 25-26. [33] In summary on this ground of appeal, I conclude that the judge erred in his assessment of suspicious circumstances. In my view, the appellant met the burden of pointing to some evidence that would "tend to negative" the testator's knowledge and approval. That being so, the presumption of validity was spent, and the respondent had the burden of proving Mrs. Bush's testamentary capacity, knowledge and approval of the will. I turn now to the question of whether the judge erred in finding that the respondent met that burden. 2. Did the judge err in his assessment of capacity, knowledge and approval? [34] As set out in Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 at 565, 39 L.J.Q.B. 237 (U.K.), a will-maker has testamentary capacity if they: a) understand what a will is--that it disposes of the will-maker's property on death; b) understand the extent of the property being disposed of; c) have in mind family and others who would be the natural objects of the will-maker's bounty; and d) are suffering no disorder of the mind that would poison their affection, pervert their sense of right, or prevent the exercise of their natural faculties--that no insane delusion shall influence their will in disposing of their property. [35] The judge concluded that the deceased had the mental acuity to make a will: at para. 28. I see no error in that conclusion. The respondent tendered the opinions of two doctors supporting the deceased's mental competence to manage her personal and legal affairs at the time the will was executed. Indeed, on appeal the appellant does not challenge the deceased's capacity to appreciate the nature and effect of the testamentary act itself. The focus on appeal is the judge's finding that the deceased knew and approved of the contents of the 2018 will. In particular, the appellant contends that Mrs. Bush was not aware of the magnitude of her estate, and therefore did not appreciate the size of the residue and the effect of dividing that residue equally among Ms. Rodrigues and her siblings. [36] On this issue, the judge said: [23] Ms. Manvell was vague on details of whether Mrs. Bush knew the specific dollars and cents possessed by her estate at the time. She admitted that it is not her practice to delve into such detail of testators' assets, as asset values go up and down over time. As Laszlo v. Lawton, 2013 BCSC 305 at para. 249, and the surveyed authorities confirm, however, it is not necessary to discuss on a particulate level of the assets within an estate, so long as the testator has a general sense of the contents of her estate. I am satisfied from the evidence not only of the making of the will, but also of the long-term relationship between Ms. Manvell and Mrs. Bush, and indeed between Ms. Manvell and Mr. and Mrs. Bush, that Mrs. Bush had a sufficient knowledge of the extent and value and nature of her estate. [Emphasis added.] [37] In my opinion, the judge's reasoning demonstrates two errors. First, he erred in law by relying on evidence of the deceased's past knowledge of her financial affairs and holdings. The propounder of a will must prove on a balance of probabilities that the testator was aware of the approximate value of their estate at the time the will was made: Laszlo at paras. 189, 244. [38] Second, the judge relied on Ms. Manvell's evidence that she "was satisfied that Mrs. Bush had an understanding of the family's real estate holdings": at para. 24. However, Ms. Manvell expressly acknowledged that she did not raise with Mrs. Bush the magnitude of the estate or the size of the residue being left to Ms. Rodrigues and her siblings: Q Okay. So during the meeting for the execution of that November 14th, 2018, will, there was no discussion specifically as to what Mrs. Bush's assets at that time were? A No. Q So at the time that Mrs. Bush executed that November 14th, 2018, will, there was no discussion regarding the nature and extent of her personal assets at that time; correct? A Correct. [39] Ms. Manvell also acknowledged that it was not her practice to discuss the extent of a testator's assets with them: Q Okay. When the November 2018 will was prepared and executed, to your knowledge, what was Mrs. Bush's understanding of the extent of her assets? A I do not -- I do not discuss my client's assets with them at the signing of their will. I -- I -- I knew Mrs. Bush from -- for many years, so I -- I knew that she was aware of the fact that they -- she probably had a substantial - I don't -- what do you call "substantial" -- assets. I also found in my 18 years that what they have one day and then when they do a will they can be broke, so that's why I don't really push -- I don't make notes about how much people had in the bank at the time of the signing of their will. [40] Ms. Manvell could say only that she "felt" Mrs. Bush knew what her assets were. In this regard, she too relied on past real estate transactions, the last of which had occurred about a year earlier, and the deceased's general assertion that "she was in charge" since her husband died. [41] In my view, the evidence the judge relied on is not capable of establishing the deceased's knowledge of the value of her estate and the approval of its distribution as provided for in the 2018 will. [42] This Court in Russell v. Fraser (1980), 118 D.L.R. (3d) 733, 1980 CanLII 737 (B.C.C.A.), considered the extent of understanding of the residue required of a testator in the context of evaluating whether they knew and approved of the contents of their will. In that case, the testator gave instructions to the manager of a credit union who was instrumental in preparing a will which directed that legacies totaling $76,000 be left to several beneficiaries. Realizing that substantial assets remained in the estate, the manager asked the testator how she wished to dispose of the residue. He facetiously suggested that the residue be left to him. After some discussion, the testator agreed. There was no evidence that she was aware that the value of the residue was approximately $130,000. [43] This Court in Russell held that it must be shown that the testator was aware of the approximate value of the residue of the estate at the time the will was executed. Justice Anderson, writing for the majority, said, at 744: It is not correct, in my opinion, to say that because the value of the residue may change and that as the will speaks only from death, that the value of the residue at the date the will is drawn is not important. In a case where an interested party is instrumental in having the will prepared, that party must "affirmatively prove that the testatrix did in truth appreciate the effect of what she was doing": see Crocket J. in Riach et al. v. Ferris, [1935] 1 D.L.R. 118, [1934] S.C.R. 725 at p. 736. This affirmative proof would in a case dealing with a gift of residue be evidence that in making a gift of residue the testatrix was aware of the magnitude of the gift that she was making. In the case on appeal, if the testatrix was not aware of the value of her real property she would be unable to appreciate the effect of what she was doing. She would not know whether the gift was small or large. In my view, the state of mind of the testatrix must be analyzed as of the date the will is drawn. It is on that day that she must be aware of the magnitude of the gift of residue. [Emphasis added.] [44] The respondent led evidence that Mrs. Bush wrote cheques, did her own banking and moved her accounts to a branch closer to the senior's residence she moved into in February 2019. However, that falls far short of evidence that the deceased was aware of the magnitude of her investments. When she made the 2018 will, her husband had died only a few months earlier and she had not yet sold her home. In Russell, this Court addressed the propounder's reliance on similar evidence, saying, at 745: I have carefully analyzed the evidence of Mr. Hoffman and while he discussed the residuary clause with the testatrix, there is no evidence that he discussed the size of the residual gift with the testatrix. The onus was on the appellant to prove affirmatively that the testatrix was aware of the approximate extent of the residuary gift at the date the will was drawn and of the factors that would cause it to change in extent. As Mr. Hoffman is the only person who had any discussions with the testatrix, it becomes obvious that there was no evidence to support the conclusion that she was aware of the value of the gift of residue. Such evidence cannot be supplied in this case by showing that the testatrix was an intelligent, mentally alert person and was aware of the amount standing to her credit in her various bank accounts. What is required here is positive proof. That is the reason for imposing on a solicitor the duty referred to in Murphy v. Lamphier (1914), 31 O.L.R. 287 at p. 319, where Boyd C. said: where instructions are given by an interested party, it is the bounden duty of the solicitor to satisfy himself thoroughly as to the testator's volition and capacity, or, in other words, that the instrument expresses the real testamentary intentions of a capable testator, prior to its being executed de facto as will [Affirmed 20 D.L.R. 906, 32 O.L.R. 19], See also Re Worrell (1969), 8 D.L.R. (3d) 36, [1970] 1 O.R. 184. The solicitor must make the necessary inquiries so that if called upon he can show that by reason of the inquiries made by him and his discussions with the testatrix, the testatrix fully appreciated the effect of what she was doing when she made her will. There is no evidence to show that this was done. [Emphasis added.] [45] In summary, the respondent has not established that Mrs. Bush understood the magnitude of her estate and in particular the value of the residue. It follows that the respondent has not met the burden of proving the will in solemn form. [46] Having found that the 2018 will has not been proved to be valid, I wish to clarify that this should not be taken as confirmation that the respondent engaged in undue influence or any nefarious conduct. This appeal turns on the burden of proof and the failure of the respondent to meet that burden. Fresh evidence application [47] Ms. Kroeger and Ms. Christianson applied on appeal to adduce new evidence consisting of the affidavit of Connie Roche, a close friend to Mrs. Bush. Ms. Roche described the extent of her involvement in caring for Mrs. Bush, the lack of involvement of family members, her friend's passivity and lack of awareness of her finances. Ms. Kroeger and Ms. Christianson also sought to adduce evidence that Mrs. Bush expressed concern (about a year after the 2018 will was made) that she did not have enough money to keep paying to live at the senior's residence, as well as various communications between the parties. If this evidence were to be admitted, the respondent sought to file an affidavit in response. [48] The test for the admission of new evidence is set out in Palmer v. The Queen, [1980] 1 S.C.R. 759 at 775, 1979 CanLII 8: (1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial (2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. (3) The evidence must be credible in the sense that it is reasonably capable of belief, and (4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [49] In my view, the application fails on the first factor. This evidence was available before trial and could have been adduced then with appropriate diligence. Disposition [50] I would allow the appeal, set aside the order below, and make the following orders: 1. The 2018 will is not valid. 2. The estate is to be distributed in accordance with the 2001 will and the May 21, 2015 codicil. 3. The costs of Irene Kroeger, Brenda Christianson, and Sandra Rodrigues are payable as special costs from the estate of Helen Bush, both in respect of the proceeding below and of this appeal. "The Honourable Madam Justice Fenlon" I AGREE: "The Honourable Justice Fleming" I AGREE: "The Honourable Justice MacNaughton"