Residue And Red Flags
A will that looks proper on paper can still fall apart under real scrutiny. We walk through a striking Court of Appeal decision where a 92‑year‑old’s revised will took 18 nieces and nephews from life‑changing inheritances to token gifts, while siblings stood to gain over a million each. The key isn’t drama; it’s doctrine. When circumstances around a will raise well‑grounded suspicion—undue influence, unclear capacity, or radical shifts without explanation—the usual presumption of validity drops away, and the burden flips to the person pushing the will to prove it’s sound.
We unpack how that burden‑shifting works, why “residue” can hide huge sums, and what evidence is needed to show the testator actually understood the size and consequences of their choices. You’ll hear how earlier documents, contradictory statements, and who drafted instructions can become powerful facts. In the end, the appellate court restored the original 2001 will, returning substantial shares to the nieces and nephews and offering a roadmap for spotting red flags in estate planning.
Then we change gears to civil costs in British Columbia. A neighbour dispute over excavation damage led to a modest award in the Supreme Court, raising hard questions about forum selection, mitigation duties, and how costs can swing based on strategy and behaviour. One twist: the self‑represented plaintiffs relied on AI, which produced fake case citations. Thankfully, counsel caught the hallucinations immediately, but there were still cost consequences—and a clear lesson. Use AI as a starting point, never an authority. Verify every citation on CanLII, read the full text, and note up decisions to see what the law is today, not yesterday.
If you care about clean estate planning, sound litigation strategy, and staying safe with legal tech, this conversation is your checklist. Subscribe, share with someone who needs it, and leave a quick review to help others find the show. What part challenged your assumptions most?
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 12:30 p.m. It’s also available on Apple Podcasts or wherever you get your podcasts.
Legally Speaking Jan 22, 2026
Adam Stirling [00:00:00] Time for our regular segment joined as always by barrister and solicitor with Mulligan Defence Lawyers. It’s Legally Speaking on CFAX 1070 joined by Michael Mulligan as always afternoon. Michael, how are we doing?
Michael T. Mulligan [00:00:10] Hey good afternoon, I’m doing great. Always good to be here.
Adam Stirling [00:00:13] Some interesting topics on the program today the BC court of appeal it says here and how “suspicious circumstances” concerning the validity of a will should be analysed. How does that work?
Michael T. Mulligan [00:00:27] So this I think is an important thing for listeners to know about and the way this”suspicious circumstances”,, is or can be significant when dealing with a will, is that if there are referred to as sort of a well-grounded basis to be suspicious about, the circumstances in which a will was prepared. That is enough to rebut what is called a presumption of validity. And the presumption of validity, the idea there is that if a will is Created in accordance with all of like the statutory requirements, having two witnesses having a sign by the real person making the will and sort of thing.
Adam Stirling [00:01:08] mm hmm.
Michael T. Mulligan [00:01:08] If the formalities are met there’s a presumption That the will is going to be valid right did and that requires a number of things. Like the person has to have an appreciation of what their Assets are and how they could distribute them and they have to be competent to do that and so on, but it creates that presumption. Now, this case is an example of how once there is a reasonable or well-grounded basis to have suspicion or there’d be suspicious circumstances surrounding things like, whether there was undue influence on the person, or whether they had capacity to do what they were doing? Did they understand the nature of what their estate was, that sort of thing? Then the burden of trying to prove that the will was valid shifts and shifts to the propounder of the will, the person who’s trying to claim that this will is valid, and so that’s how suspicious circumstances fit into the analysis. Now, that brings us to this particular case. And it’s a case of a woman who lived, sounds like a very long life. She was born in 1929. She passed away in 2021 at the age of 92. She had been Sounds like she had a long and successful marriage to a fellow for a period of forty-eight years who pre-deceased her by a few years. Leaving behind a pretty substantial estate of some five million dollars which she Inherited Upon the death of her husband. She created a will, there was she created will back in 2001, and the couple didn’t have any children, and so the will provided that her personal effects would be divided amongst her, three sisters. There would be, I think, a thousand-dollar gift to her church. And then the residue of the estate, uh would be divided equally amongst her at that time, 18 nieces and nephews. And so the residue is like what’s left over once you would distribute the specific gift, right? You know, if you say like, hey, my brother gets my car and my, you know, children get the house or whatever it might be, the residue is like the leftovers.? But because the estate was large, the leftovers would have amounted to the residue, would have amounted to approximately $275,000 per niece and nephew, a lot of money.
Adam Stirling [00:03:33] Yeah.
Michael T. Mulligan [00:03:33] Okay. But what happened is she started after her husband passed away, she was getting on in years, and she appointed one of her sisters, and I think a brother could. also act. They gave them the power of attorney so they could help deal with her financial affairs and the sister was appointed i think she was a financial professional of some sort and shortly after that happened the sister who was going to be, who had the power the attorney. Sent a written request to a notary public who had prepared the original will from back in 2021 and it listed a number of requested changes. The list was. Prepared by the sister. It was signed by the testator here, by the person who passed away.
Adam Stirling [00:04:23] Mm hmm.
Michael T. Mulligan [00:04:23] And it suggested it requested a number of significant changes to the will, which the notary drafted a will in accordance with the requested changes from the one that had previously been done. And the essence of it was that it provided for the niece and Nephews had specified they would get $5,000 each. And that the residue would be divided Amongst the siblings of the woman making the Preparing the will, the deceased and so a very substantial change. It meant that the nieces and nephews rather than getting$275,00 would get $5,000 and the siblings rather than the personal effects Would wind up with something like 1.2 million dollars each a very substantial change. And so when the woman passed away, there was a dispute about what had happened here. And there was request from a couple, I think one of the two of the nieces and nephews, and they made inquiries including asking, was there an earlier will? And the woman who was both the executor under the new will, the sister, and one these beneficiaries denied that there was an earlier will initially. That led to a court case, a challenge about whether the new will that was created was valid. At the chamber stage, like the hearing in the BC Supreme Court, the judge concluded that it was, relying on that sort of presumption of validity, and sort of had reasons saying oh well, you know, reasons why she might have prepared the, the sister might have prepared the list of changes, that sort thing. But that was appealed to the Court of Appeal, which resulted in the case decision that just came out. And the Court of Appeal concluded that the original judge that heard it had made an error in terms of how he assessed things. He had done sort of a blended assessment of the various things like capacity and undue influence and so on. And the court of appeal pointed out that once there is this, “well-grounded basis for suspicion” and the Court of Appeal pointed out there were reasons to be suspicious here. They included that there was no explanation for the very substantial change in the effect of the will, that the instructions to draft the new will were prepared by one of the people who would benefit very substantially in a financial way from it, the fact that she denied when they asked whether there’s an early will deny knowing of any earlier will, when in fact when she sent the instructions to the notary public to prepare the new one, she included the old one, asking that changes be made, and so based on that the judge concluded, there was or the court of appeal concluded there, was a well-grounded suspicion about whether for example there had been undue influence or whether for, example the woman had had a good appreciation of just how large her estate was. Because remembering when you use that kind of terminology in a will speaking about the residue, right, you’re not specifying an amount of money. It’s not like saying, OK, one thousand dollars for the church and five thousand dollars for the nieces and nephews. You’re just saying the residue. And there was an earlier case that the Court of Appeal pointed to back from a court of appeal case from back in 1980. It’s a circumstance where a testator was getting a bunch of help from a credit union manager to prepare a will. And specifying that various specific gifts be left to various beneficiaries, the manager of the credit union realised that that wouldn’t cover nearly all the money the person had, and then said in an additionally sort of jokey fashion, you know, why don’t you leave the residue to me? And eventually got the person agreed to that. And it turned out the residue was $130,000. And that was an example of a case where it was found, look, the person just didn’t have an understanding of what was there. When they sort of agreed to, oh yeah, fine, you can get the residue. It sounds like something you might scrape out of the bottom of peanut butter jar or something. When in fact, it could be a very substantial amount of money as it was in the case that we’re talking about. And so the court of appeal found that where there is that sort of basis to be at least, you know, suspicious, that burden of proving that the will is valid and that the person didn’t have undue influence and so on, shifts. Like the presumption that is valid goes away and the burden then shifts to the person who’s trying to make out that the will is valid so over to you, executor sister.
Adam Stirling [00:08:58] Yeah.
Michael T. Mulligan [00:08:58] You prove that there wasn’t a new influence that she did understand just how much this residue was and you know what’s the explanation for why she would have very substantially changed the amount of money going to all the nieces and nephews very much to your benefit what’s going on here. And the court of appeal found that there just wasn’t an evidentiary basis to be satisfied with those things and the Court of Appeal was careful to point out that that doesn’t necessarily mean that there was some improper and nefarious conduct. Simply that, once you have these sort of suspicious circumstances it’s over to you to prove it and in this case based on the things that are talked about They said, look, this just wasn’t satisfactory established that there wasn’t undue influence or that, for example, she understood really the scope of her estate when she was referring to, you know, okay, fine, my siblings can share the residue. And so the result of that is that the Court of Appeal found that new will prepared with the list of changes requested by the sister beneficiary executor. And signed eventually by the mother or by the executive by the testator was not valid. And so as a result of that, the original will the will for back in 2001 and one stands and rather than the hundred one point two million dollars going to the executor and the other siblings, they’re going to get the personal belongings and all of the nieces and nephews will wind up with $275,000. So that’s the latest from the Court of Appeal. And how suspicious circumstances play into whether a will is going to be found to be valid or not.
Adam Stirling [00:10:43] Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking will continue right after this.
[00:10:48] COMMERCIAL.
Adam Stirling [00:10:48] We return to Legally speaking on CFAX 1070, joined as always by Michael Mulligen, barrister, and solicitor with Mulligen Defence Lawyer. Michael, what’s next on our agenda?
Michael T. Mulligan [00:10:58] Next on the agenda is a decision dealing with the issue of costs being awarded in a civil case in the BC Supreme Court. And there are a couple of things about the decision that may be of interest. First of all, the idea of costs means that, you know, that if you sue somebody and you succeed, generally you’re going to get a portion of your legal expenses and other kinds of incidental costs paid for by the side that, you successfully sued. On the other hand, if you sue somebody and lose, you’re going to pay part of their costs and it’s an incentive to sort cases out and not litigate unnecessarily. So the first thing to be said about this costs decision, which is interesting, is it was a neighbour dispute basically. It was a circumstance where a builder was building, I think a house next to an existing house, had asked permission to come over and take some protective measures prior to doing some excavation work. The plaintiffs refused to allow the Protective measures to be taken and sure enough as they, I guess the foundation was being dug, a bunch of the land slipped away and it damaged a fence. The builders asked to come to be able to fix the fence and fix things but again they were refused permission to do that and so it resulted in this civil claim being brought by the Neighbours that weren’t happy with the construction, I guess. Now the first thing about it is that they sued in the BC Supreme Court You don’t get cost if you sue if you Sue somebody or get sued in small claims court. Small claims of BC goes up to $35,000; that’s a type of claim to be handled in the provincial court If you’re wanting more than that you have to go to the BC supreme court. That’s where these particular plaintiffs went, the unhappy people at their fence fall down to the construction. But at the end of the day, they only wound up with a judgement for $4,800, well short of $35,000. And so the first issue was, should you be able to get any costs at all? And the starting point there is that you can’t just go to the Supreme Court because you want to get costs or something. And the idea there is if you go to BC Supreme Court, when you really, what you should have done was go to small claims court. You don’t get costs at all unless you’ve got some sufficient reason for having started in the Supreme Court. And so that was the first issue on this cost decision. On that front, the judge ultimately found, okay, there was some reason to go there. You know, they thought maybe an injunction might’ve been necessary or they, their original claim was for more. So they got squeaked past on that one. They got a lot less money than they were asking for, first of all, on the basis that they had failed to mitigate by not letting the builders come in to shore it up or to fix the problem. And so that’s part of what vastly reduced how much they got in terms of damages. It’s like, if you’re prerogative, if you don’t wanna let people onto your property, but when, you know, so there’s some kind of thing like this, like the land sliding away and they want to fix it and stop it, you don’t let them, you may find out that you failed to mitigate, which is also a requirement. The other interesting thing in this case, it caused me to note it, is that the unrepresented plaintiffs in this case decided to use AI to do their legal work for them.
Adam Stirling [00:14:15] Uh Oh.
Michael T. Mulligan [00:14:15] And in doing so, they wound up generating AI, whichever one it was, that’s not specified, hallucinated, and generated a number of cases that were completely fictitious.
Adam Stirling [00:14:26] Yep.
Michael T. Mulligan [00:14:26] Then they came into court, they were relying on these cases that just didn’t exist. They’re just made up by the AI. And so there they are in court referring to these cases that were just made up by the hallucinating AI. Now there’ve been other cases like that in BC, including a case where a lawyer used fictitious cases that regenerated by AI and that did not go over well.
Adam Stirling [00:14:48] NO.
Michael T. Mulligan [00:14:49] Here, the judge took it to be a little bit different because these people didn’t have a lawyer and they didn’t realise that the AI had hallucinated or I guess even know that that’s not an unlikely thing to occur, if you are asking AI some of these sort of legal questions. and then the other thing, which was a little different here is that as soon as they started, that is to say the unrepresented plaintiff, started relying upon these hallucinated cases in court, the other side, which did have a lawyer immediately realised that this these don’t seem to be real. and so immediately stood up and said, look, these appear to be made up. And so Nobody got misled by them because I guess it was just, they were so obvious the hallucinations immediately identified by the other lawyer in court, that the court didn’t get misled by them, which would be just terrible. Of course if you had one judge say, okay Well, I’m gonna rely upon the case of Regina versus schmuck here that never really existed at all that became the law. So, there had to be some consequence for that in the cost assessment, but the judge found that because there was no other lawyer, they didn’t know it, and it was immediately picked up and realised that these were fake, it didn’t cause any actual harm in this case. And so awarded $200 in costs against them for having done that. Now, I would say this, as time marches on and as more of these sorts of cases collect and as people come in with fake AI hallucinated cases into court, the claim of how should I have known, Your Honour, is going to quickly lose resonance.
Adam Stirling [00:16:24] Yes.
Michael T. Mulligan [00:16:24] And so I would really caution you if you’re involved in a legal case, do not rely upon CHAT GPT to do your legal research for you. And if you do use it as a starting point, be absolutely sure that if you have like each case as a citation, like the way you could look it up.
Adam Stirling [00:16:39] mm hmm.
Michael T. Mulligan [00:16:40] And if you take that citation and you go to a site called CanLii, and Canley is a database of all the actual decisions from court case courts all across Canada, is maintained by the Federation of Law Societies and it’s free. Anyone can use it. My advice would be if you do use AI, take the citation, go to CanLii and you use Google Canley. C-A-N-L-I-I, and paste it in, and see what comes up to make sure it’s real, so it wouldn’t take too long to test. And so don’t rely upon the how could I have known defence and just take the time to do that. The other reason why that’s a good idea, just by the by for listeners, is if somebody does present you with a case, one of the things that’s prudent to do would be to Take the citation for that case, go to CanLii, put it in. And then you can do what’s called noting up a case. You could look at, it’s listed on the website, there’s treatment, which I guess is a bit of an odd term for it, but treatment means like other cases that have considered that case. And the reason why that’s an important thing to do is somebody might find some case from, I don’t know, let’s say the BC Supreme Court that says, you know, you must do this or that, or this is the legal test. If you put it in and check you might find out when you click on treatment. That six months later the court of appeal looked at that and said Hey that judge was completely wrong that’s not the right test or some future court has come along and said something like that and so that’s a prudent thing to do anyways. So anyway that’s my advertisement for CanLii it doesn’t cost anything and a very good way to make sure you’re not being misled and Chat GPT hasn’t just produced something fake for you. So that’s the latest on costs and how that can be impacted by not only suing in the wrong court but using Chat GPT to write your submission for you.
Adam Stirling [00:18:25] I find AI is usefully regarded as a conveyor belt on an assembly line that’ll give you some good products and some defective ones. And without the human, who knows better, doing quality control, it can be very dangerous to rely upon every single output being, well, correct.
Michael T. Mulligan [00:18:43] That’s absolutely right. And the other problem with it is that it can be very convincing and sound very certain.
Adam Stirling [00:18:48] Yup.
Michael T. Mulligan [00:18:49] You know, if you type into it, it doesn’t come up saying, I don’t really know. Maybe this is right. Maybe it’s wrong, right? If you sort of put it into it. You know? Show me a case about sending for some proposition. It just comes up with something, right it’s very hard if you’re not an expert in that area to try to figure out whether that’s reliable or not. And so you don’t want to you know do bridge engineering or legal research or medical research by relying just upon that. It might be a starting point, right, it might get you some principles and it might be correct, right. All of those things are true, but even if it might be correct, you know 90% of the time even that’s great, but you really need to do some follow up on it. And the way to follow up on legal research if it’s generated by some artificial intelligence is go check the actual source, go type it into CanLii and look at the case yourself to make sure not only is that a real case But did what it say about it, the summary it gave you of that? Was that an accurate summary of that case? Look for it yourself and also, has that case been overruled? Because even if AI accurately found an actual real case that actually says what it says it says, that does not mean it’s an accurate statement of the law. That might have been an accurate statement of law in 1992. And there may have been a whole lot of water under the bridge and legislative changes and court decisions since. And if you don’t, go look, to see whether you look at the treatment of it to see whether it’s been cited and whether it has been followed or not followed or modified. You could be just completely out to lunch, even if the case is real the citation is accurate and the AI correctly summarized the case, all of that could be true. But if you don’t take the time to check not only the accuracy of the citation in case of it actually exists. If you don’t go and check to make sure that that case hasn’t been overruled or changed or there isn’t something newer or the legislation that it relied upon hasn’t completely changed, you could be right out to lunch. And while, it’s not as bad as coming in with a complete hallucination. It is certainly going to be very unimpressive if you show up in court, refer to a case that here’s the law, right, judge?
Adam Stirling [00:20:58] Yeah.
Michael T. Mulligan [00:20:58] Rely upon this, look at this. Uh, and the judge goes back and types that thing into CanLii and looks at it and says, well, yeah, yeah. That was the law for about 10 minutes of 1992, but the court of appeal in 1993 said that’s completely wrong that judge got it wrong. Everything else you have to say is going to be treated with great scepticism. So check your work and that’s where you can do it at no cost.
Adam Stirling [00:21:18] All right, that’s all the time we have for today, but Michael Mulligan, thank you so much. Pleasure as always. Really appreciate these segments.
Michael T. Mulligan [00:21:24] Hey, thanks so much. Always great to be here. Have a great
Adam Stirling [00:21:25] All right, Legally Speaking during the second half of our second hour every Thursday here on CFAX 1070 quick break news is next.
Automatically Transcribed on January 23, 2026 – MULLIGAN DEFENCE LAWYERS