In estate litigation, independent corroborative evidence is key. Section 13 of the Evidence Act requires it. A claim “shall not” be granted without evidence that “is corroborated by some other material evidence”:

In Fair v. BMO Nesbitt Burns Inc., reported on here, the Court’s finding that there was a lack of corroborative evidence aided the defendants in succeeding on their summary judgment motion. The decision was upheld on appeal.

The Facts

Mr. Fair and Mrs. Fair invested together with BMO Nesbitt Burns. Their investment accounts were not joint accounts, but each spouse designated the other as the beneficiary of the other’s accounts. BMO would regularly deposit funds from their investment accounts into their joint account, which monies the couple would use to assist in paying their ongoing expenses. BMO also shared the account statements with both spouses.

Mr. Fair died unexpectedly. It was then discovered that prior to his death he had changed the beneficiary designation on his investment accounts from Mrs. Fair to his children from a prior marriage. Mrs. Fair’s position was that this change was in direct conflict with her and Mr. Fair’s agreement that they would each be the beneficiary of the other’s investments.

The Action and the Outcome

Mrs. Fair sued BMO, arguing that it ought to have notified her of the beneficiary designation change. She did not succeed. The Court agreed with BMO’s argument that there was no duty to disclose the designation change.

Mrs. Fair also sued the estate, arguing that her case was virtually the same as the situation in Moore v. Sweet, where the couple had an agreement that the ex-wife would pay the ex-husband’s insurance premiums in exchange for remaining the designated beneficiary of the ex-husband’s insurance policy. The ex-wife was entitled to the policy proceeds in that case.

Mrs. Fair also lost this argument. The Court distinguished between Moore v Sweet and Mrs. Fair’s case, noting that the agreement was not clear nor corroborated. There was no evidence of direct contributions by Mrs. Fair to the investment accounts. Further, the indirect contributions were reasoned by the Court as having been adequately addressed through the provision of other assets.

The Take Away

Given the facts of this case, the outcome may seem unkind to Mrs. Fair. That said, given the language of the Evidence Act, the case reminds us that independent corroborative evidence is a requirement the courts will insist upon, and, given the risks inherent in estate litigation, the more abundant evidence one has in this regard, the better the opportunity one has to persuade a court that the legislative requirement has been met.

Thanks for reading and have a great day,

Natalia Angelini