Estate Planning

Just Because You Say So Doesn't Make It So

By Hull & Hull LLP

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).

Keep cheering,

Craig

Full post as published by Toronto Estate Law Blog on August 21, 2008 (boomark / email).