Expert Evidence in a Contested Passing of Accounts

November 30, 2007 Hull & Hull LLP Uncategorized Tags: 0 Comments

Yesterday, the Ontario Bar Association held a very interesting seminar on “Passing of Accounts: Getting Cost Effective Results”. 

Craig Vander Zee of this office gave a presentation on trials in a contested passing.  I was particularly interested in the comments he made in his paper about the use of expert evidence on a contested passing.  The court has the discretion to determine whether expert evidence should be introduced and will consider the necessity of such evidence, particularly in terms of the witness’s credentials or experience.

Expert evidence can be extremely helpful when the issues in dispute relate to such issues as trustee investments or the value of estate assets.  For example, when a beneficiary is displeased with the return on an investment a trustee has made, expert evidence can be helpful in persuading a court that the investment was a prudent one (or was an unwise one, as the case may be) or, if there is a dispute over the amount for which an asset was sold, an expert opinion on value can be helpful in determining what, if any, damages resulted from the sale. 

It is important to remember that when counsel wishes to rely on an expert opinion, the opinion and the information forming the basis of the opinion might have to be disclosed to opposing counsel.  However, counsel generally will not be required to disclose the opinion if it was prepared in contemplation of litigation. 

Have a great weekend!

Megan F. Connolly

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