A Manitoba son’s challenge to a revised will that substantially reduced his inheritance remains dismissed after the province’s appeal court found no reversible error in the assessment of his evidence or the handling of his case.
In Clifford v Clifford Estate, 2026 MBCA 82, the Court of Appeal of Manitoba dismissed the appeal on September 15, 2026, and released written reasons on October 7. The three-judge panel upheld the dismissal of William Scott Clifford’s application to have his father’s March 2020 will formally proved and declared invalid.
The court expressly left an important legal question open: whether Manitoba should adopt an Ontario rule requiring a minimum evidentiary foundation before that kind of contested probate proceeding can go ahead. The parties agreed to use the rule in this case, and the appeal was decided on that basis—not as a general adoption of it for Manitoba.
A smaller inheritance, not disinheritance
Larry William Clifford made wills in February 2019 and March 2020, about 54 weeks apart. The earlier will gave his son substantial interests in farmland and farm assets, as well as half the estate’s residue—the property remaining after other estate obligations and gifts.
The later will significantly reduced those benefits. It divided the remainder interest in the home property between the son and his sister, rather than leaving it to the son alone, and did not repeat specific gifts of other farmland and farming assets. Although the son still received half the residue, his share was to be held in trust for his benefit during his lifetime.
After his father died in November 2024, the son applied to challenge the will. His central allegations were that his father lacked the capacity to make it and had been subjected to undue influence. The respondent beneficiaries successfully asked a Court of King’s Bench judge to dismiss the application because it did not meet the agreed evidentiary threshold.
The threshold question remains open
The threshold comes from the Ontario Court of Appeal’s decision in Neuberger Estate v York. It requires an interested person to present some minimum evidence before obtaining an order that a will be proved in solemn form, the contested process for establishing its validity.
The Manitoba appeal court explained that the test is established in Ontario and has been used in some Manitoba trial-level decisions. But a recent Manitoba appeal, Simmons v Sinclair, had left its adoption unresolved.
The panel alerted the parties to Simmons before hearing Clifford’s appeal. The son chose not to seek amended appeal grounds challenging the test’s applicability and instead consented to its use. The court therefore reviewed how the judge had applied the agreed test without deciding whether it governs Manitoba cases generally.
The reasons also distinguish an initial evidentiary burden from the ultimate burden of proving a will. The person putting a will forward must establish proper execution, knowledge and approval, and testamentary capacity. Evidence of proper execution and apparent understanding can support a rebuttable presumption. A challenger can displace that presumption by pointing to evidence such as suspicious circumstances; if that happens, the person relying on the will must prove the relevant matters on a balance of probabilities.
Physical illness did not establish impaired capacity
The son argued that the judge had misapplied the threshold and mishandled evidence of suspicious circumstances. The appeal court found no error warranting intervention.
The judge had focused on the period between the two wills. Although the son described his father’s physical health problems, he did not identify cognitive impairment or an inability to work on the farm. The son also relied on his father’s capacity during the same period and described an agreement and farming work they undertook together afterwards.
The judge found no intervening circumstances establishing a basis for the alleged lack of capacity or undue influence. The evidence also showed that the daughter accused of exercising influence was not communicating with the father when either will was made. Both wills were prepared and executed with the same lawyer, who had a longstanding personal and professional relationship with the father. The mere fact that the two wills differed did not, by itself, establish suspicious circumstances.
The panel did identify one mistaken reliance on a comment from a separate proceeding. It found that error harmless because other admissible evidence established the relevant fact. It did not overturn the judge’s evidentiary assessment.
New counsel received an adjournment
The son also challenged the refusal to give his newly retained lawyer permission to amend the application and file additional affidavits if necessary.
The request did not identify a proposed amendment or establish that one was needed. Although the judge refused the requested three-month delay, he granted a one-month adjournment. During that time, new counsel cross-examined four of the beneficiaries’ affidavit witnesses.
The appeal court said a further motion could have been brought if counsel identified compelling reasons for a specific amendment or further material evidence. None was made. Fuller reasons for the refusal would have been preferable, but the panel found no reviewable error in the discretionary case-management decisions, including consideration of prejudice to the other parties.
The appeal was dismissed with three sets of tariff costs: one for the respondent beneficiaries, one for the estate administrators and one for a minor beneficiary. The reasons do not state a dollar amount. Separate lower-court orders concerning security for costs and vacating the deceased’s property were not appealed.
