Time is rarely on our side in estate litigation. Will challenges, capacity disputes, and estate administration battles can take years to resolve, often relying on testimony from witnesses who are aging, ill, or otherwise vulnerable. What happens when a key witness may not live long enough or remain mentally capable to testify at trial?
Following up on yesterday’s blog, I wanted to now review De Bene Esse Examinations: an estate litigation procedural tool which can be used to ensure that crucial evidence is preserved in advance of trial and can be tendered later if the witness becomes unavailable.
What Is a De Bene Esse Examination?
A de bene esse examination is a pre-trial examination conducted under Rule 36.01(2) of the Rules of Civil Procedure. It is used when a party anticipates that a key witness (often a non-party) may not be able to attend trial due to age, illness, infirmity, or relocation outside the jurisdiction.
The examination is recorded (via transcript or video), and, if permitted, that evidence can be introduced at trial in lieu of live testimony.
Estate Litigation Context
De bene esse examinations are particularly useful in will challenges for several reasons:
- Elderly witnesses: Many key witnesses are themselves elderly such as longtime neighbours, caregivers, a retiring or relocating physician of the testator, or a drafting solicitor with health issues.
- Time delays: Estate litigation trials can take months or years to schedule.
- Irreplaceable testimony: In testamentary capacity or undue influence disputes, the loss of even one firsthand account can be fatal to a party’s case.
Preserving evidence from these witnesses can be crucial for your case.
Legal Framework: Rule 36.01(2)
Under Rule 36.01(2), the court may grant leave to conduct an examination before trial where a party proposes to introduce the evidence of a person who may not be able to attend trial. The rule applies equally to party and non-party witnesses.
The Court will consider:
- Whether the witness may die, become infirm, or mentally incapable;
- Whether the witness may be outside Ontario at the time of trial;
- Costs and convenience of bringing the witness to trial; and/or
- Whether the court should be able to assess the witness live.
The examination can be conducted by consent of the parties or with leave of the court.
Conducting a De Bene Esse Examination
A proper de bene esse examination mirrors trial evidence:
- One party leads in chief, the opposing party conducts cross-examination, and re-examination is permitted (within scope).
- The examination is recorded via transcript or video (or both).
- The examining party typically bears the costs of attendance, travel, or legal fees and the Court may order the examining party to pre-pay or reimburse the costs of the other party associated with the examination (Rule 36.01(5)).
Admissibility at Trial
Even if properly conducted, a de bene esse transcript or recording is not automatically admissible. The trial judge has discretion to refuse its use if the witness is available or the evidence becomes inappropriate due to changes in the case.
Final Thoughts
De bene esse examinations can be a powerful procedural safeguard given the stakes in will disputes and the often fragile health of key witnesses. When a witness’s evidence may be lost due to health, death, or distance, this rule allows parties to preserve testimony that could otherwise vanish forever.
Thanks for reading and have a great day!