Evidence issues in estates when a main party is deceased – Hull on Estates #111

May 20, 2008 Hull & Hull LLP Hull on Estates, Litigation, Podcasts Tags: , , , , , , , , , , , , , , , , , , , , 0 Comments

Listen to evidence issues in estates when a main party is deceased.

This week on Hull on Estates, Rick and Sean discuss evidence issues in estate matters when a main party is deceased. They reference "Burns Estate and Mellon"; a 2000 Court of Appeal Case cited in 34 Estates and Trusts Reports, 2nd Edition, p.175.

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.

Evidence issues in estates when a main party is deceased – Hull on Estates Podcast #111

Posted on May 20th, 2008 by Hull & Hull LLP

Sean Graham: Hello and welcome to Hull on Estates. You’re listening to Episode #111 on Tuesday, May 20th, 2008.

Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada.  Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and Wills. Now, here are today’s hosts.

Rick Bickhram:  Hi and welcome to another episode of Hull on Estates. I’m Rick Bickhram.

Sean Graham: And I’m Sean Graham.

Rick Bickhram: And today, we’re going to be touching on one of the statutes, specifically the Evidence Act and we’re going to be looking at Section 13 of the Evidence Act.

Sean Graham: Yeah, and in a more general sense, we’re going to be discussing how evidence issues or at least some of the concepts dealing with evidence issues and estates, given that one of the main parties that would normally be a party is deceased.  And so some of the direct evidence that might normally be available is not available to the Court and how the Court struggles with that problem. So, Rick, maybe you can frame the problem with respect to claims by or against an estate.

Rick Bickhram: Well, Sean, I’m looking at Section 13 of the Evidence Act and under Section 13 it states, “in an action by or against the heirs, next-of-kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence”.

Sean Graham: And the way I read that Section is basically that it’s not enough for someone claiming against an estate to show up after the death of the deceased and say, “I had a contract with the deceased. I was going to provide services and the deceased was going to pay me $100,000, and I provided those services.  I mowed the lawn of the deceased and I kept the house clean and so forth, and I fulfilled my side of the bargain, and now I want my $100,000”. If you want to bring a claim like that, you need to have some sort of corroborative evidence because otherwise it’s your word against the deceased’s, and of course, the deceased is not able to speak for him or herself.

Rick Bickhram: Before we touch on what type of evidence, I guess, we can use to corroborate such a claim, Sean, I’d just like to get what you think about the public policy reasons behind the Evidence Act. I’m guessing that the reason why this statute exists pretty much is because any evidence that is not corroborated by some type of external evidence other than testimony or viva voce evidence, is probably because it would constitute hearsay evidence.

Sean Graham: Well I’m not sure about, I mean a lot of the evidence that would be relied on would be purportedly direct evidence because the claimant would say, “No, the deceased told me this, I heard the deceased say this”, so that’s direct evidence. The issue I would have is that you can’t test that evidence, you can’t weigh the credibility of that evidence against what the deceased might say because, of course, you don’t know what the deceased might say. And so it’s an added hurdle to someone who shows up after the death and says, “Well I have all these entitlements because of this arrangement with the deceased or that arrangement with the deceased, and you can trust me because I’m telling the truth”. Well the Court, you know, holds people to a higher standard than that. 

And another comment I would make is that in many cases where somebody brings a suit against the estate, the facts that might give rise to that suit might have been present while the deceased was still alive and so there might be…another public policy aspect to this is, “Hey, if you didn’t start the lawsuit while they were alive and could defend themselves, you’d better have some pretty good evidence after that”, or not pretty good evidence but you’d better have some evidence to corroborate what you’re saying because otherwise, we’re going to assume that you might not be telling the truth and we’re not going to give your evidence any weight and you can’t bring your claim. So you need some corroboration to be able to bring it.

Rick Bickhram: Now, touching on the evidence, the corroborating evidence that would necessarily be used to prove such a claim, there’s a vast amount of case law out there which touches on this, such as, corroborating evidence can be the course of conduct of the parties, it can be an existing contract in place, it possibly could be witnesses who’ve heard the deceased mentioned or some form of verbal contract. And I’ll let Sean, I guess, discuss more specifically any case laws that may come to mind.

Sean Graham: Oh sure, and I think that when you talk about sort of broad categories of evidence that might be applicable and helpful to corroborate and meet the standard under Section 13, when you have broad categories like that then almost inevitably it seems to me the Court is bound to treat these matters on a case-by-case basis. So I don’t think there is likely to be any hard and fast rules where, you know, if you can check off box 1, 2 and 3 on a checklist well then you meet the standard under Section 13 and you’re good to go ahead with the litigation. I think that in each case, you know, you’re never going to be really sure because the Court is going to look at whatever evidence is purported to be pursuant to Section 13, and look at it in the circumstances of that particular case before deciding whether you meet the standard. But maybe, I think it’s worth mentioning at least one case, and if we’re going to mention one case, I guess it should be the Burns Estate and Mellon case.  That’s Burns is B-U-R-N-S and Mellon is M-E-L-L-O-N. This is a Court of Appeal case from the year 2000 and you can find it at 34 Estates and Trusts Reports, 2nd. ed., page 175. 

In this case the personal representative of an estate was the one bringing the claim.  So you can either sue the estate or the estate can sue you, but in either case, you need Section 13 evidence. In this case it was the estate doing the suing and the estate brought an action against a person who received a large transfer from the deceased about two years before death.  And so the issues dealt with by the Court of Appeal were how exactly do you corroborate the claim and what standard did the estate have to meet and was the standard met in this case? Now the Court of Appeal held that if you are assessing Section 13 evidence, of course, it’s the civil standard, meaning the balance of probabilities. So if the Court feels that on a 51% basis you’ve proven that you have corroborative evidence, that’s good enough and on you go with the lawsuit. But if you’re at the 48%, in theory anyway, then its full-stop and you don’t meet the standard.

In this case, there were several pieces of evidence and each piece of evidence on its own was not necessarily strong evidence.  But again, in all the facts of the case, and I think this is the exercise we have to do, in all the facts of that particular case it was good enough, when you add it altogether to provide the necessary corroboration.  And I think it’s important to note that the Court of Appeal did, in fact, state that if each separate piece of purported corroborative evidence wasn’t particularly strong and it was only when you cumulatively looked at them in a cumulative sense that they were enough to get the estate over the standard threshold.

Rick Bickhram: And looking at the facts and the reasonings of the Court, it makes complete sense.  What the Court came out here pretty much, I’m guessing it did, and said here was that based on each individual piece of evidence, it wouldn’t probably be enough to sway a Court to say on the balance of probabilities, there’s enough corroborating evidence to verify the claim.  However, the Courts addressed that issue by saying they’ve looked at the totality of the circumstances here and in light of that, it was enough to validate the claim.

Sean Graham: Yeah, and I think that’s a pretty good example of just to what extent these matters are going to be treated with on a case-by-case basis by the Court.  And just a comment on clients and advising on this point. I find very often clients are very surprised when they come in and want to discuss a claim against an estate and you ask them, “well, okay, but what evidence do you have supporting that claim?” and they say, ”well, what do you mean? The deceased told me X, Y and Z, and that’s all the evidence I need, that’s the claim”. Well, no.  And that can be an uncomfortable discussion because, you know, parties, when someone is often elderly and often in ill health, the last thing most of them want to do is start collecting evidence to be able to sue their estate down the road and often the deceased is in the exact same position. The last thing they want to worry about if they’re maybe in ill health and declining is setting up a bunch of lawsuits for their personal representatives to bring on their estate’s behalf after their death. So, very often there may have well been a very good claim, except that nobody, the priority during life was not to create a bunch of evidence or to collect a bunch of evidence to be able to sue someone after the fact. And clients often, you know, they’re sort of kicking themselves in the foot because they weren’t thinking about this.  But, of course, to me it seems perfectly natural not to be thinking about that.

Rick Bickhram: I agree, Sean, and that definitely can lead to some uncomfortable discussions.

Sean Graham: I think that brings us to the end of this week’s discussion. Thanks to everyone for listening and thanks for joining us today.  And Rick, thanks so much.

Rick Bickhram: It was a pleasure to podcast with you today, Sean, and I look forward to podcasting with you again soon.

Sean Graham: And we always look forward to hearing from our listeners.  If you care to comment, you can send us an e-mail at hull.lawyers@gmail.com or you can just pick up the phone and leave us a message on our comment line, that’s 206-350-6636. We love to get constructive criticism and comments whenever anyone is kind enough to provide it. Be sure to visit our blog at estatelaw.hullandhull.com. You’ll find lots of information, lots of discussion on estate litigation and capacity litigation. We hope you enjoyed today’s show.  Again, I’m Sean Graham.

Rick Bickhram: And I’m Rick Bickhram. Until next week, so long.

This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

Our theme music is Upper Structure by DJ AKid  and is courtesy of the Podsafe Music Network.


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