Ontario Superior Court of Justice
Court File No.: CV-23-00696601-00ES
Date: 2025-01-10
Parties
Between:
Bryan Anroop and Amadai Hardayal, Applicants
and
Chandrawattie Naqvi, Laxmi Anroop, Ramdat Anroop and Bisram Anroop, Respondents
Applicant Counsel: James Jagtoo, Michael Jagtoo and Frances Jagtoo
Respondent Counsel: Kimberly Gale and Palak Mahajan
Heard: December 9 & 10, 2024
Released: January 10, 2025
Judge: Catherine Gilmore
Judgment on Application
Background
[1] This is a Will Challenge brought by the Applicants. The Applicant Bryan Anroop (“Bryan”) is the grandson of the deceased, Reka Anroop (“Reka”). The Applicant Amadai Hardayal (“Amadai” or “Emma”) is Bryan’s mother. First names are respectfully used to refer to the parties herein given the occurrence of the last name “Anroop” and “Naqvi” in this case.
[2] This case was not heard as a trial. Rather, counsel made submissions on the Application based on affidavits and cross-examinations on those affidavits.
[3] The Applicants challenge Reka’s Fourth Will dated May 19, 2022 (“the Fourth Will”), claiming that Reka did not have knowledge of it, or approve of its contents. They also allege that Reka did not have capacity to execute the Fourth Will, that the Respondents exerted undue influence or coercion with respect to the execution of the Fourth Will as the Fourth Will was a marked departure from the three prior Wills and/or that the Fourth Will is void or invalid as it was a forgery or the subject of unconscionable procurement.
[4] The Respondents are Reka’s living adult children. Only the Respondent Chandrawattie Naqvi (“Chandra”) participated in this litigation.
[5] Chandra’s position is that the Fourth Will was not forged and her father had capacity to sign it. As such, the Fourth Will should be considered her father’s final Will and the residue of his Estate divided equally amongst her and her siblings as per the terms of the Fourth Will. Chandra did not file a cross-application and seeks no legal remedy against the Applicants.
[6] In the event the Fourth Will is not set aside, the Applicants seek declaratory relief for reimbursement of the sum of $75,600 representing funds they claim were paid towards renovations of Reka's home with his consent.
[7] For the reasons set out below, the relief sought by the Applicants is dismissed. The Fourth Will is declared valid and Reka’s last Will shall stand. Directions are given below regarding the life insurance policy and the joined Small Claims Court claim.
Factual Background and Timeline of Events
[8] Reka died on July 4, 2022, at age 87. His wife predeceased him in 1989. On his death he owned an unencumbered home located at 133 Ingleton Boulevard, Toronto (“the home”). The home was sold by the Estate Trustee for $1,110,000. The home is the most significant asset of the Estate. The funds from the sale of the home remain in trust. The total assets of the Estate at the time of this hearing were $1,129,482.72 all held in cash.
[9] Reka had six children. His child Phumattie Luckhoo died in 2018 leaving no issue. His son Narine Anroop (“Narine”) also predeceased him and died on December 30, 2021, at age 62. Narine is survived by his son Bryan and his common law spouse of over 30 years, Amadai.
[10] Narine, Amadai and Bryan moved in to live with Reka in 1988 when Bryan was four years old. Bryan and his grandfather had a close relationship during the 26 years they lived together.
[11] Reka’s other living children are the Respondents in this proceeding. His daughters are Laxmi Anroop (“Laxmi” or “Lollita”) and Chandra, and his sons are Bisram Anroop (“Bisram”) and Ramdat Anroop (“Ramdat”). Only Chandra has filed a Notice of Appearance in this matter. Her siblings have not given evidence, but the Court was informed that they support her positions on all the outstanding issues.
[12] Reka made four Wills including the Will that is the subject of this proceeding: a Will dated February 28, 2021 (“the First Will”), a Will dated March 3, 2021 (“the Second Will”), a Will dated October 20, 2021 (“the Third Will”) and the Fourth Will dated May 19, 2022. The Applicants seek to set aside the Fourth Will and uphold the Third Will.
[13] The First Will was part of a “Will Kit” in which Amadai completed the form. Amadai, Reka and the witness to the First Will, Kwame Lennon (“Mr. Lennon”) attended Ms. Katoch’s office to execute the First Will on February 28, 2021. Ms. Katoch was the solicitor who drafted and attended on the execution of the First, Second and Third Wills.
[14] In the First Will, Narine was named as sole Estate Trustee and the residue of the Estate was left to Narine. In the event that Narine predeceased Reka, the residue was left to Bryan. The First Will specified that the home was to be left to Narine, and the contents of Reka’s CIBC account was to be divided amongst his four other surviving children. Laxmi was permitted to remain in the home, but her boyfriend Mr. Andy Smith was not permitted to live there. The First Will was witnessed by Ms. Katoch (whose last name at that time was Panwar) and Mr. Lennon.
[15] Ms. Katoch was concerned about the “Will Kit” form and encouraged Reka and Amadai to have a proper Will drawn for Reka. This led to the Second Will which was prepared by Ms. Katoch and signed by Reka on March 3, 2021. In the Second Will, Narine is named as sole Estate Trustee and Bryan is named as the alternate. The CIBC account is to be divided equally between his four surviving children (other than Narine), and his Life Insurance Policy with Royal Bank in the amount of $20,000 is left to Narine. The home is left to Narine and if Narine predeceased Reka, it is to go to Bryan. The Second Will provides that Laxmi was permitted to remain in the home as long as she wanted but is not to receive any share of the proceeds of the sale of the home.
[16] The Second Will provides burial instructions stipulating that Reka be cremated with funeral services to take place at Ogden Funeral Home. Reka’s ashes were to be buried at Highland Memory Garden. The Second Will was witnessed by Mr. Lennon and Ms. Katoch.
[17] When Narine suffered a stroke and had serious health issues in 2021, Reka and Amadai discussed changes to the Second Will. This led to the creation of the Third Will, also drafted by Ms. Katoch and witnessed by Mr. Lennon and Ms. Katoch.
[18] In the Third Will (signed by Reka on October 20, 2021) Bryan is named as the sole Estate Trustee with Amadai named as the alternate. In the event that Amadai and Narine survived Reka by 30 days, the home was to be transferred to them as joint tenants. In the event that Amadai and Narine predeceased Reka, the home was to be transferred to Bryan. The provisions related to Laxmi remaining in the home but not being entitled to any share of the proceeds of sale remained the same.
[19] The provisions related to the CIBC account, the life insurance policy and the funeral arrangements remained the same as in the Second Will.
[20] As only Amadai survived Reka, there is an interpretation issue in relation to the Third Will with respect to whether Narine’s share of the Estate falls into residue. However, since the Third Will has not been upheld, those issues are now moot.
[21] The Fourth Will (which is the subject of the within Will Challenge) was drafted by solicitor Nabeel Naqvi (“Nabeel”). Although he has the same last name, Nabeel is not related to Chandra. The Fourth Will appoints Laxmi and Chandra jointly as Estate Trustees with Ramdat the named alternate Estate Trustee.
[22] The Fourth Will divides the residue of the Estate into four parts; one for each of Chandra, Laxmi, Ramdat and Bisram. Neither Bryan nor Amadai are mentioned in the Fourth Will. The Fourth Will contains the following provision regarding Reka’s funeral and burial:
- Cremation
Provided I am still sky-diving and have made no fewer than 50 dives in the year immediately preceding my death I direct that my estate pay for an "ash dive" (including "load costs" and the cost of beer. I direct that I be cremated in any event.)
[23] It is conceded that Reka did not sky-dive during his lifetime and that this paragraph was included in the Fourth Will by “mistake.”
[24] The Fourth Will was witnessed by Nabeel and Ms. Myra Mian (“Ms. Mian”). Both Nabeel and Ms. Mian were examined under oath regarding the circumstances surrounding the drafting and execution of the Fourth Will. The Will files of both Nabeel and Ms. Katoch have been produced.
[25] On March 7, 2022, a videotaped statement was made in which Reka (in the presence of Amadai and Bryan) made certain statements about his intentions with respect to the home. The admissibility of this video was initially contested by Chandra. On the first day of the hearing, Chandra conceded the admissibility of the video. Arguments were made by both parties as to the weight which should be given to it.
[26] Between January and March 2022, Mr. Tony Baksh (“Mr. Baksh”) made renovations to the home. Bryan and Amadai claim reimbursement for the renovations in the amount of $75,600 in the event the Third Will is not upheld. Chandra challenges the proof of expenditures provided by Bryan and Amadai. She submits that the renovations were substandard, only cost $15,000 and in any event were paid for by her father.
[27] On March 8, 2022, Chandra’s husband, Asgher Naqvi ("Asgher"), called Nabeel and asked him to arrange for Reka to remake his Will. Nabeel arranged a meeting through Asgher which took place on March 14, 2022.
[28] On March 14, 2022, Reka met with Nabeel at his office to discuss the contents of the Fourth Will. Chandra said she did not recall being at that meeting although Nabeel’s evidence was that she was there.
[29] On March 15, 2022, Reka changed the beneficiary on his TFSA to Bryan. Bryan received $16,500 from the TFSA after Reka’s death. This was only discovered after Ms. Nagrani provided an informal accounting of Estate assets. Bryan did not refer to receiving these funds in any affidavit and, as such, was not questioned about it.
[30] On March 16, 2022, Reka went to Ms. Katoch’s office and provided written instructions to put Bryan and Amadai’s name on title to the home. Ms. Katoch was concerned about Reka’s ability to take and receive instructions at that time. She wrote to his doctor to request confirmation of his capacity, but that confirmation was not provided before Reka’s death. Chandra’s evidence was that the writing on the instructing note is not her father’s.
[31] On April 1, 2022, Amadai attended at the police station to make a complaint concerning harassment and intimidation by Ramdat and Bisram demanding that she and Bryan move out of the home. Ramdat and Bisram (or one of them) were cautioned by police.
[32] On April 15, 2022, Chandra called Nabeel requesting that a Will signing appointment be made for Reka. An appointment was made for May 19, 2022.
[33] On May 15, 2022, Bryan and Amadai left the home. Their evidence was that they left the home out of concerns for their own safety as they were the subject of abuse and harassment instigated by Ramdat, Bisram and Chandra. Chandra’s evidence was that Bryan and Amadai abandoned Reka and left on their accord.
[34] On May 19, 2022, Reka signed the Fourth Will at Nabeel’s office.
[35] On July 4, 2022, Reka died.
[36] On August 23, 2022, Bryan signed an Application with Ms. Katoch for an Order to be appointed as Estate Trustee pursuant to the terms of the Third Will. Neither Ms. Katoch nor Bryan were aware at that time of the existence of the Fourth Will which was not provided to them until September 21, 2022.
[37] On September 16, 2022, Chandra served and filed a Notice of Objection to Bryan’s Application for Probate on the grounds that the Third Will was revoked by the Fourth Will.
[38] The within Application was issued on March 21, 2023.
[39] On September 19, 2023, the parties consented to the appointment of Kavina Nagrani as Estate Trustee. Ms. Nagrani is a lawyer and a Certified Specialist in Estates and Trusts.
[40] It is not disputed that Reka kept cash in a safe in the home. Bryan acknowledged having a key to the safe. Chandra alleges that Amadai and Bryan took $20,000 cash from the Estate and that it should be returned. Chandra claims that her father “gifted” her the remaining $37,000 and $3,000 USD from the safe. Ms. Nagrani found no cash left in the safe after her appointment.
[41] The deceased had $172,595 in his CIBC account ending in 136 when he signed the Fourth Will. About six weeks prior to his death that account was closed and a new CIBC account ending in 464 was opened in the joint names of Reka, Chandra and Laxmi and the funds from 136 were transferred into 464. On May 24, 2022, Chandra and Laxmi closed 464 and opened a new CIBC account 073 in their joint names. Chandra then changed that account into her own name. While this evidence is not specifically relevant to the Will Challenge, the Applicants raised it during the hearing as evidence of Chandra’s motives and their allegations related to her questionable character.
[42] Upon her appointment, the Estate Trustee called in the balance of 073 given the dispute about the ownership of the account. By that time the sum of approximately $70,000 was missing from the account. Chandra’s position is that all funds in 464 passed to her and Laxmi on the date of death. Bryan and Amadai submit that the funds in 464 were held in a resulting trust for the Estate on the date of death. They concede that if the Fourth Will is upheld, the issue of any missing funds will be left to the beneficiaries of the Fourth Will to resolve.
[43] Chandra claims she paid $15,000 in household expenses following the date of death as well as $3,000 in funeral expenses. Chandra has no receipt for the funeral expenses. The Estate Trustee will agree to reimburse Chandra for the household expenses so long as she can provide proper receipts as well as proof that she paid the expenses personally as opposed to using cash from the safe.
[44] Given that the Fourth Will has been upheld, it will be up to the Estate Trustee or Succeeding Estate Trustees to deal with any disputes between the siblings as to whether funds allegedly taken by Chandra form part of a resulting trust in favour of the Estate. This Court is not tasked with resolving those issues.
[45] The deceased had a life insurance policy with RBC in the amount of $20,000. In 1996 Reka changed his beneficiary designation from his wife to Chandra and Laxmi. Reka left the life insurance policy to Narine in the Second and Third Wills. Following the date of death, Bryan applied for and received the life insurance payout based on the beneficiary designation contained in the Third Will and the fact that his father died without a Will. Chandra commenced a Small Claims Court Action (“the SCC Action”) in July 2023 (given that the funds fall outside of the Estate) claiming repayment from Bryan.
[46] On September 10, 2024, the Pre Trial judge ordered that the SCC Action be tried with the within Application. The Applicants seek to strike the SCC Action claiming that there is no cause of action as between Bryan and Chandra and Chandra has failed to name the proper parties. A ruling on the disposition of the SCC Action is contained in these reasons.
[Further sections continue as in the original, with subheaders for each major section:]
- The Evidence of the Drafting Solicitors
- The Evidence of the Parties
- The Issues
- Did Reka have Capacity to Execute the Fourth Will and did he Have Knowledge of and Approve its Contents?
- Was Reka Unduly Influenced to Sign the Fourth Will?
- Was the Signature on the Fourth Will a Forgery?
- Was the Fourth Will the Subject of Unconscionable Procurement?
- The Small Claims Court Action
- Are the Applicants Entitled to Reimbursement for the Cost of Renovations to the Home in 2022?
- Final Orders and Directions re Costs
Final Orders
[249] The Application is dismissed and the Fourth Will dated May 19, 2022 shall stand as the last Will of the deceased.
[250] The current Estate Trustee, Ms. Kavina Nagrani shall be removed and Chandra Naqvi and Laxmi Anroop are appointed as Succeeding Estate Trustees after fulfilling the two conditions set out below:
a. Ms. Nagrani’s reasonable accounts are paid in full from the Estate.
b. The $75,600 owed to the Applicants by way of compensation for the renovations is paid from the residue of the Estate.
Until these conditions are met, Ms. Nagrani shall remain as Estate Trustee.
[251] After the abovementioned conditions are met and the Succeeding Estate Trustees are appointed, the Notice of Objection filed by the Applicants shall be set aside and a Certificate of Appointment of Succeeding Estate Trustee shall issue to Chandra Naqvi and Laxmi Anroop.
[252] A copy of the May 19, 2022 Will is sufficient to issue the Certificate of Appointment of Succeeding Estate Trustee as the original Will has been lost. No bond is required.
[253] Estate Administration Tax in the amount of $19,905 previously paid by Bryan Anroop and/or Amadai Hardayal in relation to the Third Will shall be refunded by the Minister of Finance or such other government agency which has the authority to make such a payment.
[254] No further claims may be brought against the Estate by any party.
[255] The Applicants’ motion to dismiss the SCC Claim is dismissed. The SCC Claim is stayed pending the following:
a. Chandra is granted leave to add Laxmi as a Plaintiff (or a Defendant if Laxmi is unwilling to be added as a Plaintiff) and RBC as a Defendant. Chandra is granted leave to amend her Claim as needed given the additional parties. Chandra to serve and file her Amended Claim on Bryan and RBC within 90 days of the date of this judgment.
b. Bryan has 30 days after the receipt of Chandra’s Amended Claim to file an Amended Statement of Defence.
c. The timelines herein do not affect the Limitation Period.
d. In the event that Chandra does not complete the steps set out in a) above, the SCC Claim will be deemed to be dismissed.
e. Assuming Chandra complies with the directions in a) above and the SCC Claim remains extant, the SCC Claim will be referred back to the Small Claims Court for scheduling and a hearing. Given that the Will Challenge has been dismissed, a claim for this amount should not remain in the Superior Court.
[256] The Applicants are to receive the sum of $75,600 from the residue of the Estate for their contributions to the 2022 renovations. This is a first charge on the Estate and to be paid in priority before any other distribution to the beneficiaries.
[257] The parties may provide their written submissions on costs on the following schedule:
a. Chandra within seven days of the date of this judgment.
b. The Applicants seven days thereafter.
c. Any Reply by Chandra five days after the response by the Applicants.
[258] Costs submissions are limited to four pages (double spaced) excluding any Offers to Settle or Bill of Costs. Reply submissions are limited to two pages (double spaced). Case law and evidence references in the costs submissions are to be hyperlinked.
[259] Costs submissions are to be provided to my assistant. If no costs submissions are received within 35 days of the date of this judgment, costs shall be deemed to be settled.
Catherine Gilmore
Released: January 10, 2025