In the recent decision of Rudin-Brown et al v. Brown, 2021 ONSC 3366, Justice H. J. Williams discusses the admissibility of audio recordings.
This case involves Carolyn Brown, who is 91 years old, Gordon Brown (Carolyn’s son who lives with her), Christina (“Missy”) Rudin-Brown (Carolyn’s daughter) and Jeanne Brown (Carolyn’s sister-in-law). Around 2008, Missy noticed Carolyn was having some memory problems which became more obvious around 2012. Gordon maintains that other than occasional memory lapses, Carolyn was fine until June 2017 when her memory declined suddenly and noticeably.
In September 2016, Carolyn signed powers of attorney appointing Gordon as her attorney for property and personal care. The 2016 powers of attorney replaced her 2009 powers of attorney which appointed Jeanne as her attorney for property, and Missy and Gordon as her attorneys for personal care. Carolyn also signed a new will in September 2016 appointing Gordon as the executor and the beneficiary of the residue of her estate, replacing her 2009 Will which appointed Jeanne as the executor and divided the residue of her estate equally among Gordon, Missy and Zachary Brown (the son of Carolyn’s late daughter, Sandra).
There were two competing applications before the court for the guardianship of Carolyn – one was brought by Missy and Jeanne and the other by Gordon. These applications were consolidated by Justice Kershman and a trial was ordered.
Although there were a few issues dealt with in this trial, for the purposes of this blog, I will focus on the court’s decision on the issue of whether the recordings of Carolyn’s conversations made by Gordon were admissible and if so, how they may be used as evidence.
Gordon sought to introduce into evidence 15 recordings of Carolyn’s telephone conversations he made in 2017. Also, Missy and Jeanne tendered one of Gordon’s recordings and an excerpt from another. In deciding whether these recordings were admissible, the court considered many factors including the origin of the recordings, whether Carolyn knew and fully approved of these recordings, as well as the probative value and prejudicial effect of admitting these recordings into evidence.
Among other things, Justice H. J. Williams clearly noted that “the manner in which evidence is obtained, no matter how improper or illegal, is not an impediment to its admission at common law”. It was important for the court to consider and weigh the prejudicial effect of the evidence against the probative value. Specially, the court noted that:
“The court nonetheless maintains a general exclusionary discretion to exclude otherwise admissible evidence if the prejudicial effect outweighs the probative value. Evidence may be excluded under this cost-benefit analysis if its probative value is overborne by its prejudicial effect, if it involves an inordinate amount of time to present the evidence that is not commensurate with its value, or if it is misleading in that its effect on the trier of fact is out of proportion to its reliability as probative material.”
The court found Missy’s side of the recorded conversations to be more probative than prejudicial and the conversations between Gordon and Carolyn to be highly probative and therefore admitted. The court had concerns regarding Carolyn’s side of the recorded conversations, particularly because Carolyn was not able to testify. The court discussed the fact that Gordon only produced the recordings he thought were relevant as well as considered whether Carolyn’s side of the conversations truly represented Carolyn’s views and state of mind.
Importantly, the court did not accept Gordon’s evidence that Carolyn knew he was recording her and that she had authorized him to do so. The court noted that during a conversation, Carolyn did not want to speak about something with “you know who around”, referring to Gordon. If she had known that all her conversations were being recorded, Gordon being around would have been irrelevant. As a result, the court found that “Carolyn did not agree to have her conversations recorded, or, if she did, she did not appreciate what she was agreeing to.”
Interestingly, the court noted that although “surreptitious audio and video recordings should be strongly discouraged by the courts” because they foster distrust and have a toxic effect on future relationships, if the recordings and the evidence that flowed from them were excluded in this case, the court would be “left to decide the case based on a record [the court knows] to be incomplete.”
On the issue of the audio recordings, Justice H. J. Williams “with some reluctance, concluded that the recordings are admissible” and the court “will place little weight on Carolyn’s side of the conversations.”
For a more in-depth discussion on this case and admissibility of audio recordings, please listen to last week’s podcast on Hull on Estates.
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Guardianship litigation can be messy and upsetting to those involved in such proceedings, particularly when there are multiple family members fighting over who should act as guardian.
It is also possible for a guardianship application to be brought on an uncontested basis, meaning that no one is opposing the appointment of the proposed guardian. That being said, given that the appointment of a guardian is a serious restriction on a person’s liberty, the courts do not take guardianship appointments lightly, and still have strict requirements for evidence, even in uncontested guardianships.
Pursuant to s. 22(1) of the Substitute Decisions Act, 1992 (the “SDA”), and s. 55(1) of the SDA, the court may appoint a guardian of property and/or personal care for a person who is incapable of managing property and/or personal care if, as a result of that incapacity it is necessary for decisions to be made on his or her behalf by a person authorized to do so.
Least Restrictive Course of Action
Sections 22(3) and 55(2) of the SDA provide an important restriction on the court’s ability to appoint a guardian, requiring that a court not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that is less restrictive of the person’s decision-making rights than the appointment of a guardian.
In particular, if a person has made a power of attorney for property or personal care naming the individual(s) who they wish to make decisions on their behalf in the event of their incapacity, the court may be reluctant to appoint a guardian and override the person’s own choice of a substitute decision-maker. Accordingly, a guardianship application should include evidence as to whether the alleged incapable person has executed powers of attorney, and what efforts the applicant has made to determine whether powers of attorney exist.
It is also important to remember that even if a person is incapable of managing their property or personal care, he or she may still be capable of making a power of attorney in this regard. Allowing a person to name their own substitute decision maker will of course be less restrictive of his or her decision-making rights than the court imposing a guardian on him or her. Accordingly, a person’s capacity to make powers of attorney should always be considered in the context of a guardianship application, and evidence in this regard should be provided to the court.
Furthermore, if a person is capable of naming his or her own attorney by executing powers of attorney, it may be possible to avoid the costs of a guardianship application, which can be significant.
A Finding of Incapacity is Required
There is also a statutory requirement in s. 58(1) of the SDA that the court make a finding of incapacity in order to appoint a guardian. The court will require evidence in support of a finding of incapacity. Most frequently, this will take the form of a capacity assessment by a trained capacity assessor.
Sometimes applicants are hesitant to obtain a capacity assessment of an alleged incapable person, either due to the cost of the assessment, fear of upsetting the person, or some other reason. While these concerns are understandable, it is important that the court be provided with evidence sufficient to allow it to make the finding of incapacity. Otherwise, it will not be able to appoint a guardian. The cost of the capacity assessment will almost certainly be less than the cost of bringing a guardianship application, only to be unsuccessful when the court is unwilling to appoint a guardian without adequate evidence to satisfy it as to incapacity.
A capacity assessment is also useful as it may reveal that an alleged incapable person does have some level of capacity. As noted above, a person may be capable of executing a power of attorney, even if he or she is incapable of managing his or her own property or personal care. In that case, a guardianship application may be able to be avoided altogether.
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When a parent transfers assets to an adult child, the rebuttable presumption of resulting trust will apply to that transfer. Unless the child can rebut the presumption, it will be presumed that the child was holding the transferred assets in trust for the parent.
But what kind of evidence will be needed to rebut the presumption? Ideally there would be some kind of documentation made contemporaneously with the transfer to support the parent’s intention. If the documentation is lacking, there may be evidentiary issues where the parent has passed away or is incapable, and is not able to give evidence as to his or her intention at the time of the transfer.
In the recent decision of Pandke Estate v Lauzon, 2021 ONSC 123, the court considered two cheques paid by a mother, Carol, to her adult son and daughter-in-law, Steven and Marnee, in the amounts of $35,000.00 and $90,000.00, respectively, shortly before her death. The court reviewed the evidence in determining whether the presumption of resulting trust was rebutted, or whether Carol had intended the cheques to be gifts.
Carol was diagnosed with terminal pancreatic cancer in 2017, and died about a month following her diagnosis. At the time that she was diagnosed, she lived with her husband, William, to whom she had been married since 1992. Following her diagnosis, it was decided that Carol would move in with Steven and Marnee, as William was not physically capable of providing her the care that she would require. Shortly after moving in with Steven and Marnee, Carol provided a cheque in the amount of $35,000.00, payable to Marnee, with a note on the cheque stating that it was “For Rent”. Four days later Carol provided another cheque payable to Steven, in the amount of $90,000.00, with the note on the cheque stating “Medical Expenses”. The total value of the two cheques constituted the majority of Carol’s liquid assets. William, who was the sole beneficiary of Carol’s estate, challenged these payments following Carol’s death.
The court found that the $35,000.00 payment was intended to be a gift by Carol to Steven and Marnee. Part of the evidence on which the court’s conclusion in this regard was based was Marnee’s hearsay evidence of what Carol had told her about why she was making the payment, being that Steven had left his job to care for Carol and she did not want him to suffer financially as a result. The court found that Marnee’s hearsay evidence could be admitted, notwithstanding that it was hearsay, on the basis that it fell within a traditional exception to the hearsay rule (that the statement is adduced to demonstrate the intentions or state of mind of the declarant at the time the statement was made) and under the principled approach to hearsay evidence as it met the necessity and reliability requirements. The court also found that Marnee’s evidence was corroborated by independent evidence.
However, with respect to the $90,000.00 payment, the court found that there was insufficient evidence to rebut the presumption of resulting trust. Although the court admitted Steven’s evidence of statements made by Carol to him as to her state of mind at the time the cheque was signed, the court also raised other concerns with Steven’s evidence. For instance, the reference to “Medical Expenses” noted on the cheque was concerning, as there were no medical expenses, and the court wondered why Carol would not have simply indicated that it was a gift if that is what she intended it to be. The court was also not convinced by a statement that Steven said was made by Carol that she was making the payment because she did not want Steven to suffer financially because he had left work to care for her, given that only a few days before Carol had made the $35,000.00 payment, which paid off Steven’s truck loan, line of credit, and left around $15,000.00 cash to spare. There was also no corroborating evidence of Carol’s intention to gift the $90,000.00 amount to Steven. As a result, Steven held the $90,000.00 in trust for Carol’s estate.
Unfortunately, it is often the case that payments to adult children are challenged after the parent has died. Unless the parent has taken special care to document his or her intention in making the payment, the intention can be difficult to determine with any degree of certainty. Accordingly, a parent making a gift to an adult child should consider seeking legal advice as to the best way to document such a transfer in order to ensure that their intentions will be upheld. From the opposite perspective, if a parent wants to make a transfer on the basis that their adult child will hold the asset in trust for him or her, or his or her estate, the parent should also consider seeking legal advice to ensure that this is properly documented in order to reduce the chance of issues arising in this regard after his or her death.
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A party has a prima facie right to test the evidence given by a witness through cross-examination. This is a critical means to building a body of evidence to support one’s case. However, if a party does not make adequate efforts to avail themselves of the opportunity to cross-examine, they may lose this benefit. The Honourable Madam Justice Sylvia Corthorn of the Ontario Superior Court of Justice addresses this issue in her recent decision in Clayton v. Clayton et al., 2020 ONSC 7592.
Clayton involves an application to remove the trustees of two trusts that form part of an estate. The applicant in this case brought a motion for an order striking the affidavit sworn by one of the respondents and trustees, Shirley. Pursuant to a notice of cross-examination, Shirley was to be cross-examined on her affidavit on November 22, 2019. However, prior to the commencement of cross-examinations, Shirley’s counsel advised that she would not be produced for cross-examination due to concerns about her mental capacity. Counsel agreed that an assessment of Shirley’s capacity to be cross-examined was necessary and consequently, she was not cross-examined. The applicant did not obtain a certificate of non-attendance with respect to Shirley’s cross-examination and no notice to cross-examine Shirley on a subsequent date was served.
The geriatric assessment of Shirley was scheduled for May 2020 and then postponed to the fall of 2020 due to COVID-19. There was no evidence before the court as to whether this assessment was ever done. The hearing of the application was likewise delayed as a result of the pandemic. The application is currently scheduled to be heard in January 2021.
At no point after November 2019 did the applicant pursue cross-examination of Shirley. When the application returned to court in September 2020, the applicant took the position that Shirley’s affidavit cannot be used on the application in light of her supposed incapacity and the respondents’ alleged refusal to permit cross-examination. The applicant then brought a motion requesting that the affidavit be struck in its entirety on the grounds that the admission of this evidence would be prejudicial to the fairness of the hearing and constitute an abuse of process.
Justice Corthorn dismissed the applicant’s motion. She found that he did not take any steps, prior to bringing this motion, to seek the assistance of the court in determining the steps required to address concerns with respect to Shirley’s affidavit and whether she could be cross-examined. She also considered that the application had already been adjourned three times and that the applicant had not requested a further adjournment to permit cross-examination of Shirley. Justice Corthorn affirmed that the court has discretion to prevent or limit cross-examination where it is in the interests of justice to do so. She decided that in this case, it is fair to both the process and the parties to admit Shirley’s affidavit and leave the issue of the weight to be given to her evidence to be determined with the benefit of the complete record. The parties would also have the opportunity to make submissions with respect to the weight to be given to Shirley’s evidence, and this will permit the court to control the process and avoid an abuse of it.
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In many estates disputes, litigants find themselves in the position of not having as much evidence as they would like, and regretting that they had not gathered more. This occurs because litigation is typically unplanned, with many disagreements suddenly fanning from small flames to infernos. Parties, as well, tend not to prepare for the worst at the outset of their dispute; they hope for reconciliation and do not immediately heed their gloomy forebodings. And, as estates conflicts mostly arise from family quarrels, it is commonplace for parties not to collect receipts, locate witness, assemble affidavits, and secure other evidence until it is too late – when the key witness has died, the receipts are gone, and other useful evidence is buried in the past.
In such cases of scant evidence, parties’ credibility looms large. It is necessary, then, for counsel to skillfully establish their own parties’ credibility while undermining that of their opposing witnesses. In so doing, before counsel contradicts an opposing witness’ testimony, counsel must put the impugning evidence to the witness while the witness is still on the stand. This is known as the rule in Browne v. Dunn, in which case Lord Herschell explained the rule’s purpose:
“My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practices in the conduct of a case but is essential to fair play and fair dealing with witnesses.”
The rule is by no means absolute, for its application depends on the judge’s discretion. With this in view, some counsel deliberately ignore it, concluding that the strategic advantages of evidentiary ambushes outmatch the drawbacks. Consider the damage caused if, at the end of a proceeding, counsel prompts the final witness to let slip several calumnies about another witness who has already been cross-examined; while this would be a breach of the rule in Browne v. Dunn, it might prove worthwhile insofar as it could taint the witness’ credibility.
The consequences of breaching Browne v. Dunn can be impactful. In one Alberta estates decision, the Court of Queen’s Bench found that counsel’s violation of the rule “diminishe[d] the weight of their evidence”. If it is found that counsel has deliberately breached the rule to cause prejudice, the court may prohibit counsel “from the presentation of its case”. Another remedy is for the judge to allow counsel to recall his or her witness to confront the subject matter of the Browne v. Dunn breaches. Recalling a witness and having the final say can provide a strong tactical advantage – “he laughs best who laughs last”, as the idiom goes.
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Ian Hull & Devin McMurtry
I recently read an interesting article by Helene Love titled “Seniors on the Stand: Accommodating Older Witnesses in Adversarial Trials”, that explored the intersection of age and its effects on witness testimony in trials. Helene’s article considers whether the legal and procedural rules that have been developed to ensure that only the most reliable evidence is used in a trial may disproportionately be excluding evidence from seniors. The paper assessed the risks associated with aging, as well as the practical and legal issues related to aging witnesses, and offered suggestions to accommodate senior witnesses within our current legal framework. I will summarize some of the key considerations below.
The objective of a trial is to discover the truth. Examinations of witnesses under oath allow the trier of fact to test the reliability of witnesses, making examinations during trial a fundamental aspect of the modern day trial. Interestingly, the basis for requiring live testimony of witnesses dates back to the 16th and 17th century trials by jury, whereby jurors were not prevented from relying on untrustworthy sources of information, and abuses of power were common. In order to enhance the reliability of trials and control the quality of evidence, judges created the requirement for witnesses to provide evidence in person. The reliability of a witness is typically assessed by a judge based on a witness’s ability to observe, recall, and then recount and event in the courtroom.
Reports indicate that within the next 20 years, the number of Canadians aged 65 years or older will double, meaning that there will be more senior citizens involved in the justice system. Given the significant increase in older persons acting as witnesses, there are a number of ways that aging can impact a witness’s ability to provide evidence during a trial.
Some of the risks associated with aging include:
- Attrition – depending on the complexity of a case, it can take months or even years to finally reach a trial date, meaning that there are increased chances that an older witness, particularly those over 80 years old, have an increased chance of dying before having a chance to take the witness stand.
- Changes to the Sensory Organs and the Brain with Age – biological changes to sensory organs and the brain can result in a decrease in perceptual acuity and gaps in memory.
- Mobility Issues – Health Canada reports that by age 75, 29% of men and 38% of women report at least one physical limitation, making it more difficult to attend court in person, particularly if that appearance is extended over a period of time.
- Strokes and Dementia – Individuals aged over 65 are ten times more likely to have a stroke, and individuals who have had a stroke are more than twice as likely to develop dementia. Dementia can involve a range of symptoms, including physical limitations such as limb stiffness to the most commonly known type of dementia, Alzheimer’s Disease. Individuals with cognitive impairments would not be competent to testify in a trial.
This begs the question, how can the legal system accommodate senior witnesses while maintaining accuracy and reliability as top priorities in the pursuit of the truth? I will address some of the main solutions proposed in the civil context (although there were a number of great alternatives proposed in the criminal context that I encourage you to read).
- Expedited trial scheduling or proceeding by way of summary trial. Although not discussed in this article, another possibility in Ontario may be to request a case management judge who can determine whether the case should be heard in an expedited manner.
- Obtain witness evidence at an earlier point in time through discoveries, pre-trial examinations, or affidavit evidence to be relied on at a later date.
- Use the principled approach to hearsay. The rule against hearsay states that earlier statements made by others outside of court are presumptively inadmissible because they were not made under oath, in the presence of the trier of fact and/or tested by cross examination. However, hearsay statements can be admitted for their truth if they are sufficiently necessary and reliable, as outlined in the leading Supreme Court of Canada case of R v Khelawon, 2006 SCC 57
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 In the 1692 Salem Witch Trials, 14 women and 6 men were executed on charges of witchcraft based entirely on supernatural visions that indicated the presence of witchcraft, the reliability of which went untested during the trial.
A recent news article refers to the struggle of father of accused killer Bryer Schmegelsky to obtain video footage from the Royal Canadian Mounted Police.
The father’s lawyer has referred to the video as the accused’s “last will and testament.” It was apparently recorded very shortly before death and expresses funeral and burial preferences.
Oral wills (also known as nuncupative wills) are recognized in select jurisdictions, including some American states:
- New York law provides that an oral will, heard by at least two witnesses and made by a member of the active military or a mariner while at sea can be valid and will expire one year after discharge from the armed forces or three years after a sailor, if the testator survives the situation of peril;
- In North Carolina, an oral will made while the testator’s death is imminent and in circumstances where the testator does not survive in the presence of two or more witnesses may be valid;
- In Texas, oral wills made in the presence of three or more witnesses on the testator’s deathbed before September 2007 are valid in respect of personal property of limited value.
As most state legislation is silent on the issue of videotaped wills, if the testator’s oral wishes are videotaped, they must generally meet the criteria for a valid oral will to be effective.
However, in Canada, a will must be in writing, signed by the testator, and witnessed by two people. Alternatively, a will that is entirely in the testator’s handwriting and unwitnessed may be valid. Because Ontario is a strict compliance jurisdiction, any inconsistency with the formal requirements, as set out in the Succession Law Reform Act, renders a will invalid.
While a videotaped statement intended to be viewed posthumously may not be a valid will in Ontario and other Canadian provinces, it can nevertheless be used to express the deceased’s final wishes, for example with respect to the disposition of his or her remains (which are typically precatory rather than enforceable, even if appearing within a written document), and may assist a family in finding closure following an unexpected loss.
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A recent decision dealing with the estate of a French rock star highlights the potential relevance of social media evidence in estates matters.
Johnny Halliday, known as the “French Elvis”, died in 2017, leaving a Last Will and Testament that left his entire estate to his fourth wife, disinheriting his adult children from a previous marriage. The New York Times reports that French law does not permit a testator to disinherit his or her children in such a manner, and the adult children made a claim against the estate on that basis. The issue became whether the deceased singer had lived primarily in the United States or in France.
Halliday was active on Instagram, using the service to promote his albums and tours, as well as to share details of his personal life with fans. The adult children were, accordingly, able to track where their father had been located in the years leading up to his death, establishing that he had lived in France for 151 days in 2015 and 168 in 2016, before spending 7 months immediately preceding his death in France. Their position based on the social media evidence was preferred over that of Halliday’s widow and their claims against the estate were permitted.
Decisions like this raise the issue of whether parties to estate litigation can be required to produce the contents of their social media profiles as relevant evidence to the issues in dispute. Arguably, within the context of estates, social media evidence may be particularly relevant to dependant’s support applications, where the nature of an alleged dependant’s relationship with the deceased, along with the lifestyle enjoyed prior to death, may be well-documented.
The law regarding the discoverability of social media posts in estate and family law in Canada is still developing. While the prevalence of social media like Instagram, Twitter, and Facebook is undeniable, services like these have not become popular only in the last fifteen years or so and it seems that users continue to share increasingly intimate parts of their lives online.
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Written reasons from a mid-trial motion was recently released in Barker v. Barker, 2019 ONSC 2906. The only issue in this motion was whether a particular video of a deceased plaintiff was admissible at trial. The larger claim at issue surrounds the Oak Ridge division of the Penetanguishene mental health centre and its treatment of maximum security mental health patients between the 60’s and the 80’s. One of the plaintiffs, James Motherall, died after the action was brought and his claims were continued by the estate trustees of Mr. Motherall’s estate under Rule 9 of the Rules of Civil Procedure.
Prior to Mr. Motherall’s death, Mr. Motherall was examined for discovery in the ordinary course but he was not examined under Rule 36 for the purpose of having his video testimony tendered as evidence at trial. Since a de bene esse examination did not occur, the trial judge was literally unable to assess Mr. Motherall’s credibility with his own eyes. In an effort to address this issue, counsel for the plaintiffs sought to introduce video footage of Mr. Motherall from a CBC documentary that featured Mr. Motherall and his experiences at Oak Ridge. The footage was taken a month before Mr. Motherall’s death and counsel for the Plaintiffs proposed to call the filmmaker as a witness to introduce the unedited footage of the filmmaker’s interview with Mr. Motherall.
Without criticizing the filmmaker’s work, the trial judge found that the video interview was not conducted under reliable circumstances for the purposes of a trial because Mr. Motherall was not sworn, he was not cross-examined, and he was simply asked to tell his story without more. The video was presumptively hearsay and it was up to the plaintiffs to meet, on a balance of probabilities, the criteria of necessity and reliability under the principled approach for the admissibility of hearsay evidence (R v. Khelawon, 2006 SCC 57, R. v. Chretien, 2014 ONCA 403).
In addition to the issues of reliability, the trial judge also found that the video was not necessary since there was a transcript of evidence from Mr. Motherall’s examination for discovery and an affidavit from Mr. Motherall in the course of a prior summary judgment motion.
Both the filmmaker’s proposed testimony and the video footage of Mr. Motherall was found to be inadmissible.
Even though Barker v. Barker is at its core a civil matter, the reasoning from this motion is instructive for estate litigators who are also bound by the additional hurdle for material corroboration pursuant to section 13 of the Evidence Act.
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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.
Thank you for reading.