Tag: corroborative evidence
In a judgment released this week, Taylor-Reid v. Taylor 2016 ONSC 4751, the Ontario Superior Court has once again demonstrated just how difficult it is to set aside a Will on the basis that it was procured by undue influence.
The Deceased died September 22, 2011. He was survived by his second wife, Shirley and his two children, Andrea and Kenneth.
The Deceased left a Will that named Shirley as the sole beneficiary of his Estate. Prior to the Deceased’s death, he transferred various assets held solely in his name or jointly with Andrea to Shirley. He also changed his several beneficiary designations from Andrea to Shirley.
Almost two years after the death of the Deceased, Andrea commenced an action against Shirley on the grounds that the Deceased’s Will (and various beneficiary designations in favour of Shirley) were invalid as a result of Shirley’s undue influence. The basis of Andrea’s claim was solely on allegations that Shirley “verbally or implicitly” threatened to leave the Deceased or divorce him immediately if he did not comply with her demands to make the Will, change the beneficiary designations, transfer the assets to her solely, and completely exclude Andrea from his Estate.
To support her claim, Andrea argued that there were suspicious circumstances surrounding the making of the Will and the beneficiary designations benefitting Shirley thereby giving rise to a presumption of undue influence.
The Court held that the principle of suspicious circumstances only becomes relevant when a Will is being challenged on the basis of knowledge and approval or lack of testamentary capacity. Accordingly, no presumption of undue influence arises where a party seeks to set aside a Will solely on the ground of undue influence.
Shirley brought a motion for summary judgment pursuant to Rule 20 of the Rules of Civil Procedure claiming that Andrea’s claim disclosed no genuine issue to be tried. In granting the motion for summary judgment, the Court concluded that Andrea’s claim of undue influence must be unsuccessful because Andrea failed to put forward any corroborating evidence (required by section 13 of the Evidence Act, R.S.O. 1990, c.E.23).
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Attorneys for property who receive gifts from grantors tomorrow will have to give them back, unless they have good evidence supporting the fact of the gift. The rule that fiduciaries (including attorneys for property) must prove purported gifts is stated in Cooke v. Lamotte(1851), 15 Beav. 234 at page 239.
Justice Sheard applied this rule in Kee v. Yip  O.J. No. 2879, disallowing a series of transfers by an attorney to himself, stating with respect to one such transfer, “The burden on Tom Kee to show that his mother gave him the $20,000 is a heavy one. His evidence, simply the assertion that this transaction, one of many that he did under power of attorney, was intended by her as a gift to him falls well short of discharging that burden of proof. Under the principle stated in Cooke v. Lamotte, supra, the $20,000 cannot be allowed as a gift and must be refunded."
Even more recently, in Volchuk v. Kotsis, 2007 CanLII 28527 (ON S.C.) Justice Langdon disallowed a series of purported gifts (cheques and money transfers) effected by an attorney, noting in addition that attorneys were precluded from relying solely on their own evidence by section 13 of the Ontario Evidence Act, which provides that the claimant “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 estates litigation, this rule is very useful in passings of accounts initiated pursuant to section 42 of the Sustitute Decisions Act by disappointed beneficiaries of an estate against the deceased’s former attorney for property. Of course, this rule forms part of the Common Law and is not confined to passing of accounts proceedings.
Merry Christmas to fiduciaries including attorneys, and enjoy your presents.
Christopher M.B. Graham – Click here for more information on Chris Graham.
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.
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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.