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,
This week on Hull on Estates, Diane and Craig discuss what to consider when dealing with experts and expert reports in cross examination.
Listen to the deemed undertaking rule.
This week on Hull on Estates, Paul and Allan discuss the deemed undertaking rule and its application to estate matters.
Listen to Experts in Estate Matters.
This week on Hull on Estates, Craig Vander Zee and Sarah Fitzpatrick discuss expert evidence in estate matters. In this episode they outline circumstances when one should use expert evidence, different types of experts, timing of reports, limitations of experts and the court appointed expert.
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.
Listen to Preparing for Trials in the Context of Contested Passing of Accounts
In this podcast, Craig Vander Zee and Paul Trudelle discuss trial preparation considerations in the context of a contested passing of accounts.
Given the events of last week, it is hard not to blog on the Conrad Black verdict. Much has been written with more to come. In one of my spring blogs, I commented, with some admiration, on Black’s perseverance in the face of overwhelming odds and noted the importance of steadfastness in litigation. Of course, the danger for Black, as with all other litigants, is that perseverance becomes intransigence. According to a variety of talking heads, Black had ample opportunity to settle with the shareholders and avoid the entire mess, but refused.
I will leave it to others to comment on the justness of the Black verdict. However, building on yesterday’s blog, which addressed the importance of gathering and putting forward the right evidence, the Black verdict is instructive. Black’s right-hand man, David Radler, was ultimately not believed by the jury. Black’s defence team went to great lengths to paint the prosecution’s star witness as a blagger and a liar; they obviously had some success.
What was interesting is the fact that three “small town” newspapermen were, in fact, believed by the jury of 12 ordinary men and women. The three claimed that they were suspicious when Black tried to inject himself through non-competition agreements into the sale of newspapers. To the jury, their evidence rang true and was credible; Black was up to no good.
In the end, Black was convicted on the evidence of strangers or third parties to the litigation. The three newspapermen had nothing to gain by testifying. Their evidence, presented in a sincere and congenial way, proved to be the undoing of Black. It is trite to say that litigation is unpredictable. However, when witnesses who have nothing to gain give evidence, it is best to sit up and take notice.
Thanks for reading!