Tag: section 13
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.
Thanks for reading,
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).
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.