Tag: Ontario Evidence Act
In a will challenge proceeding, the propounder has the onus of proving due execution, knowledge and approval, and testamentary capacity. The propounder is assisted by a presumption that if the will was duly executed, after having been read over or read to the testator who appeared to understand it, the testator had knowledge and approval, and the necessary testamentary capacity. This presumption can be rebutted by evidence of suspicious circumstances, based on evidence led by the challenger. The challenger must introduce evidence that, if accepted, refutes knowledge and approval or testamentary capacity. If this is done, the onus reverts to the propounder. Where a challenge is based on undue influence, the onus of proving undue influence is on the challenger.
The difficulties that arise for a challenger in refuting the presumption of capacity or of proving undue influence are discussed in the Alberta Court of Queen’s Bench decision of Logan Estate (Re), 2019 ABQB 860 (CanLII).
There, the deceased had 2 prior wills that provided that her estate was to be divided amongst her 6 children. If a child was to predecease, that child’s share would go to his or her issue. Subsequently, one of the children died. The deceased made a new will, leaving her estate to the 5 surviving children. A child of the predeceased child challenged this will.
The evidence of the drafting solicitor was that the deceased directed the changes. According to the lawyer’s notes, the husband of the predeceased child (the challenger’s father) told the deceased that he had lots of money, and that his children would be well taken care of financially under his estate.
The husband later denied this. However, by this time, the husband was suffering from dementia. He was not able to provide an affidavit or be examined on his evidence.
The court referred to the onuses, and the “epic hurdle” on the challenger. Section 11 of the Alberta Evidence Act (similar to s. 13 of the Ontario Evidence Act) requires that in an action by or against heirs, next of kin, executors, administrators or assigns, an opposed or interested party may not obtain a judgment on that person’s own evidence in respect of any matter occurring before the death of the deceased person unless the evidence is corroborated by other material evidence.
On the issue of corroboration, the court quoted from Ian Hull and Suzana Popovic-Montag’s Probate Practice:
“The issue of meaningful corroboration with respect to claims against an estate is a fundamental starting point in any estate litigation evidentiary analysis. One of the unique challenges of estate litigation is that the star witness and primary source of information is, almost always, dead. Section 13 of the Evidence Act specifically addresses this dilemma, and aims to prevent claims against estates that are based on mere allegations. The provision requires that there be independent corroboration of allegations [claims] against estates.”
As the evidence of the challenger could not be corroborated, due to her father’s incapacity, her challenge to the will was dismissed.
In dismissing the challenge, the court offered this cold comfort to the challenger:
I appreciate that [the challenger] is disappointed that she is not receiving what she believes is her proper share of Velma’s estate. However, a family member (even a lineal descendant) does not have an automatic right to a share in the estate of a deceased relative who leaves a will. The testator, through her will, has the sole power to determine the distribution of her assets. A testator may change her mind from a previous will, whether for good reason or not. These harsh realities apply even where the ultimate distribution is contrary to that family member’s sense of fairness or rationality.
The decision was upheld on appeal by the Court of Appeal of Alberta at Logan Estate (Re), 2021 ABCA 6 (CanLII).
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Secret and half-secret trusts are trust arrangements made between a testator and a trustee, without disclosure of the terms of the arrangement, but where an understanding exists between the parties. Secret trusts are not mentioned at all in a testator’s will. Half-secret trusts are explicitly included in a will, but the terms of the trust are not disclosed.
There are certain requirements that must be met in order to form a secret or a half-secret trust. With respect to secret trusts, there are four required elements, as per Ottaway v Norman  3 All ER 1325 at 1332 (“Ottaway v Norman”):
- An intent by the testator to subject the trustee to an obligation in favour of a beneficiary;
- Communication of that intent to the trustee;
- Acceptance of the obligation by the trustee, either expressly or implicitly; and
- The conditions are satisfied before or after execution of the will, but before the testator dies.
With respect to half-secret trusts, the timing of the communication and acceptance is different: it must occur before or at the time of execution of the will.
Due to the nature of these types of trusts, there can be issues proving their existence. Section 13 of the Ontario Evidence Act, RSO 190, C.E-23, requires corroboration.
Accordingly, as in Re Dhaliwal Estate, 2011 ABQB 279 (“Re Dhaliwal”), where the only evidence of the existence of the alleged secret trust were the affidavits of the chief beneficiaries of the trust, the required corroboration was not provided.
According to Re Snowden  CH 528, the standard of proof for proving a secret or half-secret trust is the normal civil standard (i.e. balance of probabilities).
As per Ottaway v Norman, where a secret trust fails, the trustee will be entitled to the trust property absolutely with no obligation to the beneficiary. By contrast, if a half-secret trust were to fail, there would be an automatic resulting trust in favour of the testator’s estate. The distinction is due to the fact that, in the case of a half-secret trust, the will explicitly states that the trustee has no beneficial interest in the trust property.
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