A Q&A discussion about the Anroop v Naqvi case, featuring Kim Gale

Written by Shaun Bernstein, The Write Stuff Agency, in conversation with estates litigator Kim Gale of Gale Law

Kim Gale has built a reputation over the past decade as a powerhouse estates litigator in Toronto. She represents families every single day who are locked in head-to-head battles with their siblings, parents, aunts, uncles, cousins over the legacy that their relatives often worked hard to leave behind. 

        Kim understands first hand how ugly estate litigation can be, and how important it is that all Canadians make a valid Will to protect their interests. That’s why a recent Ontario court decision invalidating a Will is giving her serious concern, and why she’s fighting to bring the case all the way to the Supreme Court of Canada. 

        Last week Kim took time out of her schedule to answer a few questions about the Anroop v. Naqvi case, and why all Canadians should be concerned about what happens next.

Can you give us a quick snapshot of what this case is about?

Sure. An older gentleman had six adult children, and one had passed away, but another son was living in his house, along with the son’s common-law wife and son (the gentleman’s grandson). That branch of the family was close with the Dad for a long time, but the son sadly passed away, and after a falling out the common-law wife and grandson moved out.

The grandfather had drafted several wills, and while previous versions had left the house to the son who was living with him, he wanted to make changes to his Will after that son passed. He drafted a new Will that divided everything between his four surviving children, and passed away a few months later. 

The common-law wife and grandson challenged that last Will in Court and initially lost but then brought their case to the Court of Appeal and won, reversing the decision that gave the estate to the four surviving children. One of the daughters, on behalf of her siblings, is now trying to appeal to the Supreme Court. 

How did this case come across your desk? 

We deal with a lot of Will challenges, but usually they involve whether the testator (the person making the Will) had capacity or was mentally sound enough to give and understand clear instructions, at the time they made their Will. This case is unique because both sides agree that the gentleman did have capacity, even despite his poor health, so the challenge comes on other grounds

There’s a huge bias that we all walk around with about older people losing capacity. It is true that memory can start to fail with age and reflexes may slow down, but that’s not true with everyone. There are people living well beyond 100 who still have complete faculties. Plus the legal test for capacity is a bit different – it’s really about giving instructions to and understanding advice from a lawyer, and that wasn’t the issue here.

Why does your client want to bring this case before the Supreme Court?

In this case, it’s about more than just the money. My client’s father wasn’t a ‘rich’ man by many standards, and it’s not as though this family is fighting over millions of dollars. She believes that, through the Court of Appeal decision, her father’s wishes aren’t being followed, and for reasons that don’t make sense. It’s a huge effort to bring a case before the Supreme Court, but she wants to see a wrong being made right.

Why is the Court of Appeal’s ruling so problematic?

When a testator is going to make a Will, there’s only one unbiased source that can verify a person’s true wishes, and that is a lawyer’s notes. Lawyers, like doctors and accountants, are trusted professionals. They’re entrusted with huge amounts of money in real estate transactions, and sometimes life and death matters in criminal cases. We, as the public, need to trust lawyers to try their best to get things right. 

Here, the Court of Appeal said that we can’t follow the lawyer’s notes because there was a relationship between the lawyer and the family that caused a problem and created a conflict of interest. The lawyer rents space in an office building owned by the daughter’s husband, and the son-in-law had referred that lawyer work. That lawyer got no other financial benefit from doing that work, and that part is important.

Because lawyers are so trusted, the Law Society which governs lawyers sets out very clear rules about what creates a conflict of interest and how to avoid them. This scenario does not break those rules at all! Lawyers refer work to each other all the time because we know that someone does good work and will represent that person properly. The Court of Appeal decision puts all of that into question, and can severely limit which lawyer a person uses.

There’s already a huge problem that half of all Canadians don’t have a Will. The Court of Appeal just made it even harder to get one. 

What did the Court mean when they talked about ‘suspicious circumstances’? 

Suspicious circumstances can sound like there was funny business, but that’s not actually what it means. Every family has suspicious circumstances because people’s wishes are often not communicated clearly, or all in one place. There can be a mix of papers, emails, text messages, and stories of who said what to who. It’s the lawyer’s independent notes that can help verify the truth, so the Court calling that into question raises a huge problem. 

To put it into my own context, my own mother is a commercial lawyer in Toronto. When she wanted to do her Will, she saw someone in her own firm who I’ve also had cases with in the past, and have sent business to because I know she’s excellent. Does that now mean that my Mom’s Will is invalid just because I’ve dealt with that lawyer? Possibly, and that doesn’t make any sense.

What do you think your chances of success might be?

It’s impossible to predict what the outcome will be, or whether the Supreme Court will even hear this case. For me as an estates lawyer, though, it’s not about ‘win’ or ‘lose’ here. The Court of Appeal has created a gaping hole in the law that’s going to put all lawyers on notice, and going to make it very hard for Canadians to find a lawyer.

We don’t know how broadly the Court of Appeal’s ruling applies. Moving forward, it likely means that anyone who sees a lawyer needs to sign extra conflict of interest documents, which is one thing. But, if this decision is retroactive, then it can put every Will a lawyer has done for a client into question based not on the lawyer’s work, but on how they found that client. 

The bottom line is that it shouldn’t be easy to challenge someone’s Will just because you don’t like what it says. As Canadians we have the freedom of choice, and the freedom to do what we want with our money and our property (within reason) right up until our dying day if we’re still mentally sound. This case could make it way too easy for families to wage war, and those rifts can tear families apart for good. 

What’s the lesson here for all Canadians?

Make a Will! We don’t like thinking about death, and we feel that if we don’t talk about it, it will never happen. Spoiler alert: none of us gets out of here alive. It’s easy to throw your hands in the air and say ‘I don’t care what happens because I won’t be here,’ but it’s really about providing comfort and clarity for your loved ones after you’re gone. 

Speak with your family about your wishes. Parents need to speak with their children, even if it’s uncomfortable. Tell them what you want, and what you’re planning to do. You have the freedom to make those choices, but if you don’t like the idea of your children fighting now, I can promise you it only gets worse if you’re gone and didn’t leave clear instructions.