Estate Litigation and the Need for Corroborating Evidence
Corroboration of evidence is of fundamental importance in estate litigation to protect the intentions of the testator/testatrix. This is given the obvious disadvantage faced by the dead: they cannot tell their side of the story or respond to the livings’ version of events.[1] As such, the court is assisted by section 13 of Ontario’s Evidence Act,[2] which provides as follows:
Actions by or against heirs, etc.
13 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.
Section 13 assists courts in their gatekeeping function to ensure the reliability of evidence and displaces the evidentiary rule that the testimony of a single witness, if believed to the requisite degree of certainty, is a sufficient basis for deciding in a civil case.[3]
Corroboration is generally defined as independent, third-party evidence that demonstrates that a party’s evidence on a material issue is true. Not every particular of a party’s evidence needs to be corroborated, only the most important issues. For instance, if a party challenges a Will based on undue influence and adduces evidence to this effect, they must also provide corroborating evidence that materially enhances the probability of the truth of their evidence.
The corroborating evidence can be either direct or circumstantial. It can consist of a single piece of evidence, or several pieces considered cumulatively.[4] It is not required that the evidence be given a certain weight, but only that it strengthens or make more certain the statements of the party on a material issue.[5]
Notably, corroboration is not required in litigation involving an estate where the action was commenced prior to the deceased’s passing. The decision in Latner Estate v. Latner[6] involved a dispute between Albert Latner (“Albert”) and his son, Joshua Latner (“Joshua”). The litigation, which was commenced during Albert’s lifetime, concerned monies purportedly owed to him by Joshua. Following Albert’s passing, his estate trustees continued the action against Joshua.
The court held that section 13 was not applicable to the action. It relied upon the Ontario Court of Appeal decision in Brisco Estate v. Canadian Premier Life Insurance Co.,[7] where M. Rosenberg J.A noted that:
- 13 [of the Evidence Act] is limited to circumstances in which the interested party claims as an heir, next of kin, executor, administrator or assignee and not simply because, coincidentally, the person happens to fall within one of these categories.[8]
Concluding Comments
Corroboration of evidence is of crucial importance in estate litigation given the unique challenged presented when the primary source of information, the testator/testatrix, is no longer available to provide testimony. As such, the role of section 13 of the Evidence Act is to assist the court in protecting estates against claims which are made without substantiating and reliable evidence.
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[1] Orfus Estate v The Samuel and Bessie Orfus Family Foundation, 2013 ONCA 225, citing Burns Estate v Mellon, 2000 CanLII 5739 (ONCA).
[2] Evidence Act, RSO 1990, c E.23.
[3] Waters Estate v. Henry, 2022 ONSC 5485 (CanLII) citing Radford v. MacDonald, 18 OAR 159.
[4] Burns Estate v Mellon, 2000 CanLII 5739 (ONCA). at para 29; Orfus Estate v The Samuel and Bessie Orfus Family Foundation, 2013 ONCA 225, at para 16, aff’d 2013 ONCA 225, 86 E.T.R. (3d) 6.
[5] John Hrycko v. Justin Booth, Estate Trustee of the Estate of Olga Miller, 2014 ONSC 6676 (CanLII).
[6] Latner Estate v. Latner, 2016 ONSC 364 (CanLII).
[7] Brisco Estate v. Canadian Premier Life Insurance Company, 2012 ONCA 854 (CanLII).
[8] Ibid, at para 63.
Written by: Oliver O'Brien
Posted on: October 3, 2024
Categories: Commentary, Estate Challenge, Wills
Corroboration of evidence is of fundamental importance in estate litigation to protect the intentions of the testator/testatrix. This is given the obvious disadvantage faced by the dead: they cannot tell their side of the story or respond to the livings’ version of events.[1] As such, the court is assisted by section 13 of Ontario’s Evidence Act,[2] which provides as follows:
Actions by or against heirs, etc.
13 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.
Section 13 assists courts in their gatekeeping function to ensure the reliability of evidence and displaces the evidentiary rule that the testimony of a single witness, if believed to the requisite degree of certainty, is a sufficient basis for deciding in a civil case.[3]
Corroboration is generally defined as independent, third-party evidence that demonstrates that a party’s evidence on a material issue is true. Not every particular of a party’s evidence needs to be corroborated, only the most important issues. For instance, if a party challenges a Will based on undue influence and adduces evidence to this effect, they must also provide corroborating evidence that materially enhances the probability of the truth of their evidence.
The corroborating evidence can be either direct or circumstantial. It can consist of a single piece of evidence, or several pieces considered cumulatively.[4] It is not required that the evidence be given a certain weight, but only that it strengthens or make more certain the statements of the party on a material issue.[5]
Notably, corroboration is not required in litigation involving an estate where the action was commenced prior to the deceased’s passing. The decision in Latner Estate v. Latner[6] involved a dispute between Albert Latner (“Albert”) and his son, Joshua Latner (“Joshua”). The litigation, which was commenced during Albert’s lifetime, concerned monies purportedly owed to him by Joshua. Following Albert’s passing, his estate trustees continued the action against Joshua.
The court held that section 13 was not applicable to the action. It relied upon the Ontario Court of Appeal decision in Brisco Estate v. Canadian Premier Life Insurance Co.,[7] where M. Rosenberg J.A noted that:
Concluding Comments
Corroboration of evidence is of crucial importance in estate litigation given the unique challenged presented when the primary source of information, the testator/testatrix, is no longer available to provide testimony. As such, the role of section 13 of the Evidence Act is to assist the court in protecting estates against claims which are made without substantiating and reliable evidence.
—
[1] Orfus Estate v The Samuel and Bessie Orfus Family Foundation, 2013 ONCA 225, citing Burns Estate v Mellon, 2000 CanLII 5739 (ONCA).
[2] Evidence Act, RSO 1990, c E.23.
[3] Waters Estate v. Henry, 2022 ONSC 5485 (CanLII) citing Radford v. MacDonald, 18 OAR 159.
[4] Burns Estate v Mellon, 2000 CanLII 5739 (ONCA). at para 29; Orfus Estate v The Samuel and Bessie Orfus Family Foundation, 2013 ONCA 225, at para 16, aff’d 2013 ONCA 225, 86 E.T.R. (3d) 6.
[5] John Hrycko v. Justin Booth, Estate Trustee of the Estate of Olga Miller, 2014 ONSC 6676 (CanLII).
[6] Latner Estate v. Latner, 2016 ONSC 364 (CanLII).
[7] Brisco Estate v. Canadian Premier Life Insurance Company, 2012 ONCA 854 (CanLII).
[8] Ibid, at para 63.
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