Reka Anroop (the “Deceased” or “Estate”) died on July 4, 2024, with four surviving children. The Deceased died with a purported Last Will and Testament dated October 20, 2021 (the “2021 Will”). The 2021 Will named Bryan Anroop, the Deceased’s grandson, as estate trustee. As such, Bryan applied for a certificate of appointment of estate trustee.[1]

Following this, Chandra Naqvi, one of the Deceased’s children, objected to Bryan’s probate application claiming that the Deceased executed a later Last Will and Testament dated May 19, 2022 (the “2022 Will”). In accordance with the 2022 Will, Chandra brought an application for a certificate of appointment of estate trustee.[2]

As a result, Bryan and his mother Amadai Hardayal (the “Applicants” or “Appellants”) brought an application challenging the validity of the 2022 Will.[3] Following the hearing of the application, the judge held that the 2022 Will was valid.[4] However, on Appeal, the Appellate Court held that the application judge’s judgment constituted an error of law.[5]

Background of the Parties:

The Deceased was predeceased by his wife and son, Narine who passed on December 30, 2021. Narine was Bryan’s dad and Amadai’s common-law spouse.[6] Narine and the Applicants lived with the Deceased for around 24 years. As the Deceased began to age, and especially after Narine’s passing, Amadai became the Deceased’s primary source of support.[7] The Deceased’s other children were not a fixture of providing personal or medical support in his life.[8]

Chandra did not live with the Deceased and the Appellate Court noted that her evidence of involvement with the Deceased was very inconsistent.[9]

On or about May 15, 2022, the Applicants were forced to move out of the Deceased’s home due to harassment by the Deceased’s children, including Chandra.[10] Despite no longer living with the Deceased, Amadai arranged for personal support workers to attend to his care, seven weeks later the Deceased passed.[11]

The Deceased’s Last Wills and Testaments:

The parties agreed that the Deceased made three wills and may have signed a fourth, the 2022, Will.[12]

The first three wills executed in February 2021, March 2021 and the 2021 Will, respectively, all treat the disposition of the Deceased’s home in a similar way:[13]

• The February 2021 & March 2021 Wills – left the Deceased’s home to Narine with the residue of the Estate to be distributed to Bryan should Narine predecease; and
• The 2021 Will – left the Deceased’s home to Narine and Amadai as joint tenants, and where Narine and Amadai both predeceased the Deceased, to Bryan.

The 2021 Will was drafted by solicitor Ms. Katoch, who found the Deceased had the requisite testamentary capacity to execute same. Ms. Katoch probed the Deceased with regards to why he did not want to leave his house to his other siblings. The Deceased stated it was ‘because the others lived on their own already’.[14]

On or about March 7, 2022, and following Narine’s passing, Amadai made a video recording of the Deceased where he stated that he wanted the Applicants to have his home on his death.[15] On or about March 16, 2022, the Deceased met with Ms. Katoch again requesting that his house be transferred to the Applicants. During this meeting, Ms. Katoch developed concerns about the Deceased’s capacity having observed his slurred speech, absent mindset and difficulty communicating his thoughts. As a result, Ms. Katoch declined to act on Deceased’s instructions. [16]

On or about May 19, 2022, the 2022 Will, which was drafted by real estate solicitor Mr. Naqvi, was executed. Mr. Naqvi met previously with the deceased on March 14, 2022, just two days before the Deceased’s meeting with Ms. Katoch where she noted concerns about the Deceased’s capacity. The 2022 will distributes the residue of the Estate equally to the Deceased’s four surviving children and entirely disinherits the Applicants.[17]

Application Judge’s Decision:

The application judge held that the 2022 Will was valid.[18]

The findings:

Capacity

The application judge held that based on the medical records, solicitor records and a video-taped statement of the Deceased, there was not enough evidence to find that the Deceased did not have capacity to make the 2022 Will.[19]

Undue influence

The application judge found that the Deceased was not unduly influenced despite the presence of several indicators for the susceptibility to undue influence – which were articulated in John Gironda et al. v. Vito Gironda et al., 2013 ONSC 4133, 89 E.T.R. (3d) 224, at para. 77. On the facts, these factors included:[20]

• • Dependency
  • Isolation
  • Recent family conflict and bereavement
  • The use of a different lawyer to draft a radically changed will

Signature forgery

The Applicants commissioned two reports from a handwriting expert with regards to the Deceased’s alleged signature on the 2022 Will. The expert’s report concluded that the signature found on the Deceased’s prior wills was not the same as the signature found on the 2022 Will.[21] Despite this, the application judge did little to entertain the Applicant’s theory that Chandra signed the 2022 Will by stating that such an occurrence would require a ‘significant fraud’ by all the involved actors (Chandra, Mr. Naqvi and his assistant and the witness.[22]

Appeal:

Validity of the 2022 Will

As a result of the application judge’s finding that there were no suspicious circumstances regarding the execution of the 2022 Will, it was presumptively valid. The Appellate Court found that this was an error of law and a palpable and overriding error of fact. [23]

The Appellate Court cited that the most critical error made by the application judge had to do with findings regarding the Deceased’s intention to make the 2022 Will. The application judge relied on Mr. Naqvi whose notes of his meeting with the Deceased on March 14, 2022, which indicated that the Deceased wanted to change his will because the Applicants treated him “really badly after they left the house”.[24] However, on March 14, 2022 the Applicants were still living with the Deceased at his home and were continuing to act as the Deceased’s sole caregivers at the time. In fact, the Applicants did not move out of the Deceased’s home until over two months later, on May 15, 2022.[25]

As a result of this inconsistency with reality, the Appellate Court found that the application judge did not acknowledge that the Deceased’s reason for wanting to execute the 2022 Will could possibly not be correct. The Appellate Court found that this error was clear, and thus palpable, and overriding because it went to the heart of the application judge’s decision.[26]

This error on its own gave way to suspicious circumstances surrounding the execution of the 2022 Will. Due to this finding, the presumption of testamentary capacity and knowledge and approval was rebutted and it was up to the propounder of the 2022 Will, Chandra, to establish the Deceased had the requisite testamentary capacity.[27]

Conflict of Interest

The Appellate Court found that Mr. Naqvi had a financially beneficial relationship with Chandra’s husband, Asgher. Specifically, Mr. Naqvi rented office space in a building owned by Asgher, who notably referred real estate clients to him. Further, Mr. Naqvi drafted the 2022 Will for free and did not send the Deceased a reporting letter.[28]

The application judge held that the conflict of interest was overcome because there were no ‘divided loyalties’ between Mr. Naqvi and the Deceased since they did not know each other before the March 14, 2022, meeting.[29] The Appellate Court found this to be an error of law, as the very virtue of a conflict of interest creates ‘divided loyalties’. Therefore, “the evidence of an apparent conflict of interest was sufficient to satisfy the low burden associated with establishing a suspicious circumstance”.[30]

Alleged Forgery

The Appellate Court found that in proving suspicious circumstances that it was not necessary to determine if the 2022 Will was in fact forged.[31] Instead, it found that the uncontradicted expert handwriting reports was sufficient to meet that burden [32] – (while also considering the fact that Chandra bragged about knowing how to reproduce the Deceased’s signature and in the context of Ms. Katoch’s March 16, 2022 meeting and her observations of the Deceased’s deteriorating capacity).[33]

Knowledge and Approval

Given the presumed validity of the 2022 Will was rebutted by suspicious circumstances, the onus became Chandra’s to prove the Deceased had the requisite knowledge and approval of the 2022 Will.[34]

However, the Appellate Court found that there was no reliable evidence of that effect. Particularly, the Appellate Court pointed to a “Sky Diving Provision” that was contained in the 2022 Will and stated the following:[35]

If the Deceased were “still skydiving and [had] made no fewer than 50 dives in the year immediately preceding [his] death, the estate was to pay for an ‘ash dive’.”

The Deceased never sky dived. Yet the application judge held that although this provision was a mistake, that the Deceased understood “important, dispositive clauses in his Will”. To the contrary, the Appellate Court found that this was direct evidence that the Deceased did not know and approve of (at least) that provision of the 2022 Will.[36]

Further, it was Mr. Naqvi’s evidence that he did not review the 2022 Will in its entirety with the Deceased but instead made a “judgment call” with regards to which provisions he decided were important to review. The Appellate Court opined that given the Sky Diving Provision was dispositive it should have been important for such review.[37]

Additionally, because Mr. Naqvi’s notes from March 14, 2022, did not align with reality, the alleged disposition instructions contained in them did not form reliable evidence of the Deceased’s knowledge and approval.[38]

Undue Influence

The Appellate Court held that even if it was found that the Deceased in fact signed the 2022 Will, that as an independent ground of challenge it was invalid due to undue influence.[39]

The application judge discounted various factors that went towards the Deceased’s susceptibility to undue influence, which led the Appellate Court to find that the Deceased was in a deeply vulnerable state and dependent on others for the relevant period of March – May 2022.[40] Particularly, the application judge failed to adequately consider:

• The Deceased was 87 years old and suffered from various medical ailments including a persistent brain hemorrhage and that he was grieving the recent loss of his son.[41]
• The Deceased was embroiled in clear family conflict, as evidenced by his videotaped statement.[42] The fact that the Applicants left the Deceased’s home, four days before the 2022 Will was signed, goes directly to the issue of undue influence which the Appellate Court states was “suggestive that others may have influenced the Deceased to cut the Applicants out of his will”.[43]
• Substantial departure from the 2021 Will.[44]

Key Takeaways:

Anroop demonstrates the importance of careful consideration of the evidence in a will challenge, especially as it relates to capacity, conflicts of interest and undue influence. Where the low burden of suspicious circumstances is satisfied, the presumed validity of the will is rebutted and the burden shifts to the propounder to prove testamentary capacity, knowledge and approval.

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[1] Anroop v. Naqvi, 2026 ONCA 142 (CanLII), at paras 1 & 2.

[2] Ibid at para 3.

[3] Ibid at para 5.

[4] Ibid at para 7.

[5] Ibid at para 9.

[6] Ibid at para 10.

[7] Ibid at para 11.

[8] Ibid para 12.

[9] Ibid at para 14.

[10] Ibid at para 30.

[11] Ibid at paras 34-35.

[12]Ibid at para 15.

[13] Ibid at para 16.

[14] Ibid at para 20.

[15] Ibid at para 22.

[16] Ibid at paras 23-24.

[17] Ibid at para 26.

[18]Ibid at para 40.

[19]Ibid at para 42.

[20] Ibid at para 45.

[21] Ibid at para 46.

[22] Ibid at para 47.

[23] Ibid at para 53.

[24] Ibid at para 54.

[25] Ibid at para 55.

[26] Ibid at para 56.

[27] Ibid at para 58.

[28] Ibid at para 60 & 66.

[29] Ibid at para 61.

[30] Ibid at para 62.

[31] Ibid at para 65.

[32] Ibid at paras 63 & 65.

[33] Ibid at para 63.

[34] Ibid at para 67.

[35] Ibid at paras 67 & 68.

[36] Ibid at para 68.

[37] Ibid at para 69.

[38] Ibid.

[39] Ibid at para 85.

[40] Ibid at para 78.

[41] Ibid.

[42] Ibid at para 79.

[43] Ibid at para 81.

[44] Ibid at para 83.