My Parents Changed Their Will Shortly Before They Died, Should I Be Concerned?

Disclaimer: This blog is provided for general informational purposes only and does not constitute legal advice. Readers should obtain advice from a qualified lawyer about their specific situation.

Discovering that a parent changed their will shortly before their death can be upsetting, especially if the new will significantly differs from previous versions or excludes family members who were previously included.

While a last-minute change does not automatically mean that a will is invalid, British Columbia law recognizes that certain circumstances may warrant closer scrutiny.

In some situations, courts may question whether the will-maker had the required mental capacity, understood the contents of the will, or acted free from undue influence.

When Should You Be Concerned? (604) 395-8223 

A recent change to a will may justify further investigation if it is accompanied by circumstances such as:

• A significant decline in physical or cognitive health
• A dramatic change from prior wills
• A beneficiary’s involvement in arranging or preparing the will
• Isolation from family or long-standing advisors
• Dependence on the person receiving the majority of the estate
• Unusual or unexpected distributions
• Concerns regarding memory, confusion, or decision-making abilities.

No single factor is determinative. Courts assess the surrounding circumstances as a whole.

Testamentary Capacity: Did the Will-Maker Understand What They Were Doing?

For a will to be valid, the will-maker must have testamentary capacity at the time the will is signed.

The leading authority remains: Banks v. Goodfellow (1870), LR 5 QB 549

The court held that a will-maker must generally understand:

• The nature and effect of making a will
• The extent of their property
• The individuals who might reasonably expect to benefit from the estate
• The impact of the decisions being made.

British Columbia courts continue to apply these principles when assessing testamentary capacity.

Suspicious Circumstances and the Burden of Proof

One of the most important Supreme Court of Canada decisions in this area is: Vout v. Hay, [1995] 2 SCR 876

In Vout, the Court confirmed that where suspicious circumstances exist, the person seeking to uphold the will may be required to prove that the will-maker had both testamentary capacity and knowledge and approval of the will.

Examples of suspicious circumstances may include:

• Significant changes shortly before death
• Cognitive decline
• A beneficiary’s involvement in preparing the will
• Unexplained exclusion of close family members
• Dependence on the primary beneficiary.

The existence of suspicious circumstances does not invalidate a will, but it may shift the evidentiary burden.

Source: Vout v. Hay, [1995] 2 SCR 876

Undue Influence: Was Pressure Applied?

A separate issue is whether the will-maker was pressured or manipulated into making the will.

Under British Columbia’s Wills, Estates and Succession Act (WESA), the court may declare a will invalid if it resulted from undue influence.

Section 52 of WESA creates an important protection:

Where evidence establishes that a person was in a position where they could potentially dominate the will-maker, the burden may shift to that person to demonstrate that undue influence did not occur.

Source: Wills, Estates and Succession Act, SBC 2009, c. 13, s. 52

Important British Columbia Cases

British Columbia courts have repeatedly considered allegations of undue influence and suspicious circumstances.

Notable decisions include:

Halliday v. Halliday Estate, 2019 BCCA 206

The Court of Appeal reviewed the application of section 52 of WESA and the analysis required when undue influence is alleged.

Leung v. Leung, 2019 BCSC 303

The court examined suspicious circumstances, testamentary capacity, and allegations of undue influence surrounding changes to an estate plan.

Laszlo v. Lawton, 2013 BCSC 305

A leading BC decision discussing testamentary capacity and the evidence required to establish a valid will.

What Evidence May Be Important?

Evidence commonly reviewed in will disputes includes:

• Prior versions of the will.
• Medical records
• Lawyer’s notes and file materials.
• Financial records.
• Emails and text messages.
• Witness statements.
• Evidence concerning the relationship between the will-maker and beneficiaries.

The earlier this information is gathered, the better.

Timing Matters

A change made shortly before death does not automatically invalidate a will.

However, timing may become important when combined with:

• Serious illness
• Cognitive decline
• Isolation
• Sudden beneficiary involvement
• Significant departures from prior estate plans

These are precisely the types of circumstances courts examine when assessing validity.

Key Takeaway

A last-minute will change is not necessarily improper.

However, where suspicious circumstances, capacity concerns, or undue influence may be present, British Columbia law provides mechanisms for interested parties to challenge the validity of a will.

Because estate disputes are highly fact-specific and subject to limitation periods, obtaining legal advice early can be critical.

Legal Sources

• Wills, Estates and Succession Act, SBC 2009, c. 13, s. 52
• Vout v. Hay, [1995] 2 SCR 876
• Banks v. Goodfellow (1870), LR 5 QB 549
• Halliday v. Halliday Estate, 2019 BCCA 206
• Leung v. Leung, 2019 BCSC 303
• Laszlo v. Lawton, 2013 BCSC 305