In Ontario, estate litigation can involve complex claims, which are often determined based on witness evidence and affidavits recounting what a deceased person may or may not have said. Given that conversations with the deceased have happened outside of the courtroom, hearsay statements are often relied upon in estate claims. Therefore, it is important for all parties, including executors and beneficiaries, to understand what hearsay evidence is, how it is used in estate litigation, and how it may affect the outcome of a claim.
The Basics of Hearsay Evidence
Hearsay statements are made by an individual at a time or place other than at trial, and are intended to prove the truth of a specific fact. In the leading case of R. v. Khelawon, the Supreme Court of Canada explained that hearsay statements are presumptively inadmissible unless a legal exception applies, because it is difficult to test the reliability of the statement. This is particularly the case when there is no opportunity to cross-examine the person who made the statement (for example, a deceased person in an estate matter).
Hearsay Evidence Is Generally Inadmissible
Generally, hearsay statements are inadmissible as it is considered to be unreliable secondhand information. As hearsay statements are not made under oath, the individual who made the statement is not able to be cross-examined on such statements. This means it is impossible to know the individual’s body language and demeanour at the time the statement was made, as opposed to a statement made by a witness during testimony.
Hearsay statements are sometimes referred to as “he said/she said” situations. A statement may be passed on between several persons before it is offered as evidence, meaning that by the time it is relied upon, it may not be an accurate reflection of the original statement.
Exceptions to the Hearsay Rule in Estate Litigation
However, there are exceptions to the presumption that hearsay evidence is inadmissible in court. In estate claims, courts often make an exception and admit hearsay statements into evidence. Typically, exceptions may be made in respect of things such as declarations of mental and bodily conditions and business records. Still, the most notable exception is statements allegedly made by the deceased.
The admissibility and weight given to statements made by the deceased will often turn on the reliability and credibility of both the statement and the witness who seeks to rely upon such statements. Much hearsay evidence in estate claims relates to a beneficiary’s claim that the deceased has promised them a gratuitous gift.
In the case of Re: Khan, the Supreme Court of Canada provided further clarity on the admission of hearsay evidence. The judge will first be required to determine whether the evidence in question is relevant to the issue and then determine whether any exclusionary rule of the law of evidence (found in legislation or case law) applies. If the evidence is relevant and not subject to the exclusionary evidence rule, the judge will then be required to determine whether they should exercise their discretion and admit the evidence.
Hearsay Evidence Under the Ontario Evidence Act
In Ontario, the Evidence Act (the “Act”) is the legislation which governs the admissibility of hearsay evidence, outside of the common law (case decisions). Section 13 of the Act states that:
“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.”
Under section 13, hearsay evidence may be allowed in Ontario estate claims where there is additional corroborating evidence to support the hearsay statement. In other words, a claim will not succeed if the only supporting evidence is an oral hearsay statement.
Evidence which is proposed to be relied upon may be subject to any applicable rules of evidence, such as an exclusionary rule. Exclusionary rules may apply if the evidence is, for example, irrelevant, immaterial, self-serving, or where the prejudicial effect outweighs the probative value.
Issues of Hearsay Evidence Regarding Deceased’s State of Mind
While courts have taken a generally liberal approach to hearsay evidence in estate litigation, issues may arise if the mental state of a testator is a central issue to the dispute. Hearsay evidence may be admitted if it is the only means by which a court can assess and determine the deceased’s state of mind, absent any evidence of the deceased’s actions or conduct.
The issue of post-testamentary statements arose in the decision of Stewart v. Walker, a 1903 decision of the Ontario Court of Appeal that is cited in modern cases. In that case, the Court allowed post-testamentary statements of the testator as proof in establishing the contents of a Will which were not produced subsequent to the testator’s death, despite the execution of the Will being proven.
Unsworn Documents and Recordings of a Deceased May Be Admitted as Evidence
In estate claims where there are statements, letters, videos or recordings which have been prepared by the deceased, these documents may be admitted into evidence regardless of whether they have been sworn or signed. A key determining factor in whether a court will admit these documents into evidence is based on the circumstances under which the documents were obtained.
Campbells LLP: Compassionate Estate Litigation Lawyers Serving Oakville
The experienced estate litigation lawyers at Campbells LLP represent clients in a broad range of estate disputes, including Will challenges/defences, dependant support claims, and consent and capacity issues. We create lasting relationships with our clients and provide robust advice and legal solutions to guide them through what can be an emotionally stressful time in their lives. Our estate team ensures the legacy of a testator’s loved ones is carried out as they wished, and their estate is protected. To schedule a confidential consultation, please contact us online or at 905-828-2247.