Estate Planning

Remember the Evidence Act!

By Hull & Hull LLP

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,

Chris Graham

Full post as published by Toronto Estate Law Blog on May 06, 2008 (boomark / email).