Tag: evidence act
Medical records are frequently key evidence in estate disputes. Often, a testamentary document or inter vivos transaction is challenged on the basis that the deceased lacked testamentary capacity or the mental capacity to make a valid gift.
The British Columbia Supreme Court recently reviewed the issue of admissibility of medical records within the context of a will challenge. The parties propounding the last will asserted that the deceased’s medical records were inadmissible on the basis that (1) the parties challenging the will were attempting to admit the records for the truth of their contents, (2) the records included third party statements from family members, which was suggested to constitute double hearsay evidence, and (3) the records were entirely inadmissible because they were not relevant, none of them being within weeks of the date of execution of the challenged will.
In Re Singh Estate, 2019 BCSC 272, the estate trustees named in the deceased’s will executed in 2013 only learned of the existence of a subsequent will executed in 2016 after they provided notice to the beneficiaries of the estate that they intended to apply for probate in respect of the 2013 will. The 2016 will disinherited two of the deceased’s eight children (including one of the two adult children named as estate trustee in the 2013 will) on the basis that they had received “their share” in their mother’s estate from the predeceasing husband’s estate. Between the dates of execution of the 2013 and 2016 wills, the deceased had suffered a bad fall and allegedly experienced delusions and had otherwise become forgetful and confused.
At trial, medical records are typically admitted under the business records exemption of the Evidence Act (in Ontario, section 35). Justice MacDonald acknowledged this general treatment of medical evidence, citing the Supreme Court of Canada (at para 48):
While clinical records are hearsay, they are admissible under the business records exception both at common law and under s. 42 of the Evidence Act. The requirements for the admission of medical records as business records are set out in Ares[ v Venner,  SCR 608]. The Supreme Court of Canada held at 626:
Hospital records, including nurses’ notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein.
Subsequent case law cited by the Court addressed the second objection of the parties propounding the will, which provided that the observations that a medical practitioner has a duty to record in the ordinary course of business (including those involving third parties) are generally admissible (Cambie Surgeries Corporation v British Columbia (Attorney General), 2016 BCSC 1896). Lastly, the Court considered the issue of relevance of the medical records and found that evidence relating to the mental health before and after the making of a will can be relevant in supporting an inference of capacity at the actual time of execution of the will (Laszlo v Lawton, 2013 BCSC 305).
After finding the medical records to be admissible as evidence of the deceased’s mental capacity (and in consideration of all of the available evidence), the Court declared the 2016 will to be invalid on the basis of lack of testamentary capacity.
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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:
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).
Have a nice weekend!
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In Ontario, it is trite law that an estate trustee of a testate estate derives his or her powers from the Will of the deceased. Accordingly, unlike an intestate estate, it is not always necessary for an estate trustee to obtain a Certificate of Appointment of Estate Trustee with a Will (“probate”) in order to administer an estate.
However, in certain matters it is necessary for an estate trustee to obtain probate before being able to represent the estate, regardless of whether there is a valid Will. The 2000 decision of Justice Haley in Carmichael Estate (re) succinctly sets out the three instances where probate is required:
- Third parties dealing with the executor may require probate in order to accept the authority of the Will. Justice Haley provides the example of a debtor who wishes to ensure that the proper person is being paid in order to satisfactorily discharge the debt.
- Proceedings where the executor represents the estate as plaintiff or as defendant. Here, Justice Haley notes that the Court will require probate in order to satisfy an evidentiary matter pursuant to section 49 of the Evidence Act.
- Where a foreign estate trustee intends to establish his rights in Ontario, letters probate must be resealed (referred to as ancillary letters probate).
In Re Carmichael Estate, the respondents sought to include a fourth category requiring probate – the removal of an executor under section 37(1) of the Trustee Act. The Court held, however, that an applicant is free to bring a removal application regardless of whether probate has been granted and whether the estate trustee has acted in the administration.
Re Carmichael Estate a decision well worth reading for all history buffs given Justice Haley’s excellent historical analysis of the English common law Courts relating to probate and estates from the 11th century onwards.
Today, in episode #355 of Hull on Estates, Paul Trudelle and Holly LeValliant discuss the common law of hearsay and section 13 of the Evidence Act in the context of estate litigation in the Court of Appeal decision in Brisco Estate v. Canadian Premiere Life Insurance.
If you have any questions, please email us at firstname.lastname@example.org or leave a comment on our blog page.
Click here for more information on Holly LeValliant.
One of the unique challenges of estate litigation is that the star witness is, almost always, dead. How do we then address the myriad of allegations that can be made against the Deceased or his or her Estate – which are unfortunately easy to make and expensive to defend – when an estate trustee has limited information available to defend against such allegations?
Section 13 of the Evidence Act R.S.O. 1990, c. E.23 specifically addresses this unique aspect of estate litigation, and aims to prevent claims against estates that are based on mere allegations. This provision requires that there be independent corroboration of evidence in claims against estates.
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 the recent Ontario Superior Court decision in Botnick et al. v. The Samuel and Bessie Orfus Family Foundation et al., 2011 ONSC 3043 (“Bessie Orfus Estate”), the Honourable Mr. Justice Penny considered Section 13 of the Evidence Act in the context of a summary judgment motion.
Following the Ontario Court of Appeal’s decision in Burns Estate v. Mellon, 2000 CanLII 5739 (ON CA), Justice Penny stated that “Section 13 of the Evidence Act requires that there be corroboration of material facts alleged by an 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.”
Justice Penny went on to provide the following direction to litigators: “Not every particular of the party’s evidence need be corroborated but the material evidence in corroboration must be independent of the opposite or adverse party and must appreciably help the judicial mind to accept one or more of the material facts deposed to. It must materially enhance the probability of the truth of the adverse party’s statement.”
The decision in the Bessie Orfus Estate reminds us that in all stages of prosecuting or defending a claim against an estate – whether determining the initial terms of an Order Giving Directions, considering a summary judgment motion, preparing for mediation, examinations, productions, trial, etc. – one must keep in mind the requirement of corroboration under Section 13 of the Evidence Act.
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Saman M. Jaffery
The approach taken in claims by or against the heirs, next of kin, executors, administrators or assigns of a deceased can differ from other types of legal proceedings simply because the requirements of Section 13 of the Ontario Evidence Act. Section 13 states:
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 to any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.
In determining the nature of the evidence required then to prosecute or defend a claim, one must keep in mind that an adverse party cannot rely 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, just because the adverse party says it is so, doesn’t make it so.
Section 13 places this additional evidentiary burden on the adverse party understandably because of the estate’s difficulty in defending an action without the oral evidence of the testator. In Burns Estate v. Mellon, the Court of Appeal held that the corroborating evidence must be in addition to and independent of the viva voce evidence of the adverse party; that additional evidence could be either direct or circumstantial though.
As such, attention to the evidence necessary to prove the case and how that evidence is to be marshalled is critical in these claims, whether that be by way of an Orders Giving Directions used to compel the production of documentation that others may have (ie. testamentary documents, medical records, solicitors records, financial records etc.), by way of an examination (ie. examinations for discovery, third party examinations or a de bene esse examination) or otherwise.
Focusing on the evidence that will be needed at trial or that will be persuasive in settlement discussions is but one of the first steps in formulating one’s approach to a claim.
Canadian Olympic Medal Count: holding at 13 (but hopefully with several more to come).
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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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.