Litigating with Ghosts: Is it ever ok to speak ill of the dead?

October 31, 2017 Hull & Hull LLP Estate & Trust, Estate Planning, Hull on Estates, Hull on Estates, Uncategorized 0 Comments

“Never speak ill of the dead”.  This saying, which has been traced back to Chilon of Sparta in 6th century BC, is oft-repeated and has been for centuries. People abide by the  maxim for a variety of reasons. For one, some people fear, particularly on spooky days like today, that they might provoke revenge from beyond the grave. Another reason? Because the dead cannot defend themselves against the words of the living.

Courts are particularly concerned with the latter. One of the unique challenges of estate litigation is that it necessarily involves invoking the words, actions and intentions of the dead. This can be problematic because, barring the invocation of a Stephen King plot device, the deceased will not be returning from beyond the grave to assist as a star witness. So how do estate litigation practitioners handle a scenario where a claim is  brought against an estate, on the basis of alleged wrongs committed by the deceased while they were still alive?

As it turns out, we have a rule for that.

Section 13 of the Evidence Act specifically addresses this unique aspect of estate litigation, and aims to prevent claims against estates that are based on mere allegations. The provision provides that a claim on the deceased’s estate shall not succeed if the only evidence to support it is oral and is unsupported by any document.  Section 13 of the Evidence Act provides, as follows:

“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.”

In other words, the speaking living shall not defeat the silent dead.

In Bessie Orfus Estate, the Ontario Superior Court of Justice considered the reasoning of the rule, noting that Section 13 of the Evidence Act “requires that there be corroboration of material facts alleged by the opposite or adverse party of any matter occurring before the death of the testator. This requirement exists to address the obvious disadvantage faced by the dead: they cannot tell their side of the story or respond to the livings’ version of events” 

The rationale behind the rule was also  discussed  in  Bayley v. Trusts and Guarantee Co., where the court noted that the rule exists to ensure that a court “always have present in its mind the danger of relying too implicitly upon the evidence of the living in establishing claim against the dead.”

Since it’s Halloween, I am going to propose that the ‘danger’ the Bayley court mentions  here is twofold:  referring both to the danger of prejudicing the deceased’s claim with the uncorroborated words of the living, and the danger of a perpetually haunted courthouse should one fail to mitigate this prejudice using Section13.

Thanks for reading, and Happy Halloween!

Lindsay Anderson (guest blogger) and David M. Smith

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