Will there ever be a time when artificial intelligence may be used as corroborating evidence in estate litigation?
Estate litigators are familiar with section 13 of the Evidence Act, which states that, “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”.
Couple this requirement with the advancement of posthumous artificial intelligence.
According to a recent article on CNN, an AI start-up has been extracting information from the online presence of a deceased person. Information gained from text messages, tweets, and Facebook posts were used to create a computerized chatbot based off the deceased’s personality.
According to the CNN author, several conversations were had with the deceased (as a chatbot), and believed that the deceased’s ethos was well captured. In fact, the author notes that one such friend of the deceased was texting with the chatbot for 30 minutes without realizing that the discussion was with the chatbot.
It is interesting to wonder whether AI will ever develop to the point where a litigator will rely on information from a chatbot as corroborating evidence.
Other interesting blogs discussing estates and technology can be found here:
Yesterday I talked about Section 13 of the Evidence Act (Ontario), which mandates that before someone can bring a claim by or on behalf of an Estate, he or she must have some corroborative evidence. The standard of evidence required was dealt with by the Ontario Court of Appeal in Burns Estate v. Mellon.
The Estate Trustees, who were arguing that a transfer to a friend of the deceased during lifetime ought to be reversed because it was subject to a resulting trust, argued that the recipient’s defence that the transfer was a gift ought to be defeated because her corroborative evidence did not remove all reasonable doubt that she had received a gift. The Court of Appeal agreed with the recipient, finding that the strength of evidence need only succeed on a balance of probabilities:
In principle, I see no justification for applying the criminal standard in a civil action. A criminal prosecution differs fundamentally from a civil action, and the criminal standard serves different ends and operates on different assumptions from the civil standard. (See R. v. Schwartz,  2 S.C.R. 443 (S.C.C.), at 462, per Dickson C.J.C. and Lamer J.) Moreover, nothing in s. 13 itself suggests that the Legislature intended to displace proof on a balance of probabilities with proof beyond a reasonable doubt.
Thanks for reading.
How does one prove a negative? This is a challenge facing many estates: after a person dies, individuals spring forth requesting compensation for services rendered on a quantum meruit basis or alleging that promises were made by the deceased. A common example is a claim that one provided domestic services such as cleaning, shopping or laundry.
The riddle of proving a negative is quite relevant to estates litigation because the star witness for the estate is usually, by definition, dead. Fortunately, since estate trustees can’t prove negatives, they don’t have to. Section 13 of the Evidence Act specifically addresses this scenario, requiring independent corroboration of evidence in claims against estates. The provision is designed to prevent claims that consist of mere allegations, which are easy to make, difficult to refute and expensive to litigate. There is a great deal of case law on what constitutes corroboration, the standard of proof and so forth but the provision is a great deterrent to frivolous claims.
It seems trite to say but the Act is worth a review, even for non-litigators. It’s full of counter-intuitive gems that are easily forgotten: for instance, section 9 the Evidence Act states that witnesses are not excused from answering questions tending to criminate them under any Act of the Legislature.
Have a great day,
Listen to Karkus v. Cotroneo 2007
This week on Hull on Estates, Paul Trudelle and Diane Vieira discuss the case of Karkus v. Cotroneo 2007. The case addresses many of the issues that estate lawyers face on a daily basis, such as: proving or disproving gifts, slander of title and the importance of corroborative evidence.