Simon's Megalomaniacal Legal Resources

Estates - Wills - Invalidity

. Anroop v. Naqvi

In Anroop v. Naqvi (Ont CA, 2026) the Ontario Court of Appeal allowed an appeal, here brought against an application order which held a later will to be valid and dismissing the application without costs.

Here the court considers the law of will validity, including whether 'unconscionable procurement' is a valid will doctrine, and the application of 'undue influence':

[58] As the propounder of the Fourth Will, the Respondent had the onus of proving both that it was properly executed and that the testator knew and approved of its contents: Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876, at para. 19; Dujardin v. Dujardin Estate, 2018 ONCA 597, 423 D.L.R. (4th) 731, at para. 44. There is a presumption of knowledge and approval, as well as testamentary capacity. However, this presumption is upended when there are suspicious circumstances (1) surrounding the preparation of the will, (2) calling into question the testator’s capacity, or (3) tending to show that the testator’s free will was compromised by acts of coercion or fraud: Dujardin, at para. 45. The burden of proving suspicious circumstances is not onerous. It is satisfied by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity: Vout, at para. 27. Where suspicious circumstances are present, the presumption is spent and the propounder reassumes the legal burden of establishing testamentary capacity: Vout, at para. 27.

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Issue 4 The questionable doctrine of unconscionable procurement

[72] I decline to decide the Appellants’ assertion of unconscionable procurement because it is uncertain whether such a doctrine exists: see Gefen Estate v. Gefen, 2022 ONCA 174, 161 O.R. (3d) 267, at para. 61.

[73] While the application judge was referred to a first instance decision in which the doctrine was applied, I would reiterate the cautionary note which Pepall J.A. struck, on behalf of this court, at para. 61 of Gefen:

In the absence of full legal argument on the existence and desirability of any doctrine of unconscionable procurement, I do not propose to address the merits of any such doctrine and whether grounds to attack transactions beyond such traditional grounds as undue influence and incapacity should be endorsed. Thus, this decision should not be taken as approval or rejection of unconscionable procurement being part of the law of Ontario.

[74] I would leave a determination of whether the doctrine exists to a case in which that matter is squarely raised, and fully argued and decided at first instance.

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Issue 5 The Fourth Will was the product of undue influence

[75] As noted above, the Fourth Will is invalid because, in light of the suspicious circumstances that existed (but were not properly appreciated by the application judge), the Respondent bore the burden of proving proper execution and knowledge and approval of the Fourth Will’s contents. She did not meet her burden. Nonetheless, in the unusual circumstances of this case, it is appropriate to consider whether undue influence is an independent basis for the invalidity of the Fourth Will. The application judge made findings on this issue which, as discussed below, were the product of palpable and overriding errors of fact and legal errors. It therefore falls to this court to correct those errors and substitute the finding the application judge ought to have made.

[76] Undue influence exists when a testator is coerced into doing that which they do not wish to do: Trotter Estate, 2014 ONCA 841, 122 O.R. (3d) 625, at para. 58. The burden of establishing undue influence, which is unaltered by a finding of suspicious circumstances, rests with the party asserting it, but it can be proved through circumstantial evidence: Trotter Estate, at para. 59; Vout, at para. 28.

[77] Indications of undue influence include:

. a testator’s vulnerability, dependency, or social isolation;

. the presence of family conflict or recent bereavement;

. questions about the confidentiality and independence of legal advice;

. a substantial departure from previous wills and a lack of explanation for such a departure;

. changes to other legal documents such as powers of attorney made simultaneously with testamentary changes; and

. statements made by the testator which suggest that their wishes are not accurately reflected in the will.

(Trotter Estate, at para. 61; Gironda, at para. 77)

. Barsoski Estate v. Wesley

In Barsoski Estate v. Wesley (Ont CA, 2022) the Court of Appeal considered the invalidity of a will for uncertainty of it's 'condition subsequent':

(4) Was the condition void for uncertainty?

[51] The appellant argues that the application judge confused or conflated the principles applicable to licences, determinable estates and life estates subject to conditions subsequent. However, he does not submit that, assuming, as I have found, the will created a life interest, the application judge erred in finding that the terminating event was a condition subsequent which was void for uncertainty.

[52] The respondent, while acknowledging that the application judge may have used imprecise language or conflated the principles that apply to the extinguishment of a licence as opposed to a life interest, submits that this did not affect the result. She further acknowledges that the distinction between a condition subsequent and a determining event is “murky at best”, but submits that “[i]f a terminating event is an integral part of the gift, the interest created is likely to be considered ‘determinable’”, giving examples of the presence of wording such as “during”, “while”, “so long as”, as well as the close proximity of the gift and the restriction in the same phrase or sentence. Conversely, a condition subsequent is one where the gift is “external to the limitation” : Re Essex County Roman Catholic School Board and Antaya (1977), 1977 CanLII 1822 (ON SC), 80 D.L.R. (3d) 405 (Ont. H.C.), at p. 410.

[53] The respondent argues that the following words, which appear in a separate sentence after the granting words, tend to indicate a condition subsequent:

Upon the earlier of [the appellant] advising my Trustees that he no longer wishes to live in the House, [the appellant] no longer living in the House, and [the appellant’s] death, or if [the appellant] predeceases me … the House shall be sold.

[54] The respondent also states that there are limitations built into the initial part of the gift that “could” indicate a determinable interest. For example, the will reads “as a home for [the appellant] … during his lifetime or for such shorter period as [the appellant] desires”. She submits that the requirement that the appellant live in the home could be construed as an integral and necessary part of the formula from which the size of his interest is to be ascertained.

[55] The application judge, in my view, did not err in concluding that the words in issue created a condition subsequent. She noted that there was no dispute before her that these terms were “external to the gift”, and this interpretation is supported by contextual considerations, including the fact that the appellant had never actually resided in the house before the testator’s death, although he was a frequent visitor. The admissible evidence supports the inference that the testator, given her knowledge that the appellant would have to continue to work until retirement and that he would not necessarily be living in the home immediately upon her death given that his employment was unlikely to be in London, contemplated that these terms were subsequent to the vesting of the gift. Accordingly, the condition must be construed as a condition subsequent because she could not have intended that her gift would come to its natural end as soon as it vested.

[56] Nor do I see any error in the application judge’s conclusion that the condition is void for uncertainty. At para. 31 of her reasons, she stated that

A condition subsequent is void for uncertainty if the condition is “far too indefinite and uncertain to enable the Court to say what is was that the testator meant should be the event on which the estate was to determine”: McColgan Re, supra at para. 35

[57] She continued at para. 32:

I am satisfied that the terms “no longer living” creates uncertainty such that the condition subsequent is invalid. It is impossible to define, on the terms of this will, what it means to “live” in the house. The terms do not explain what the respondent needs to demonstrate that he is “living” in the house or when he must establish that act. As noted by the respondent, this limiting phrase raises questions as to how long he can be absent or by what date or for how long he must occupy the home to be considered be “living” in the house. The problems with terms such as these are exemplified by the decisions relied upon by both parties, which concluded that such conditions requiring a beneficiary to live, reside, remain or stay on a property are void for uncertainty. [Citations omitted.].

[58] There is no dispute that if a subsequent condition contained in a grant of a life interest is found to be void for uncertainty, the gift is effective without the limiting conditions: Powell v. Powell, at para. 14. As I noted above, a condition subsequent is not integral to the interest and, therefore, the gift can exist without the condition. Accordingly, the uncertain condition is struck, and the gift survives free and clear of any condition.