ORDERS GIVING DIRECTIONS - PART IV
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. 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 Burnes 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 but that it could be either direct or circumstantial.
With respect to documentary discovery, Orders Giving Directions may be used to compel the production of documentation that others may have including any paper or writing being or purporting to be a Testamentary Document (the order might stipulate production to be before the Registrar), all medical records and files relating to the subject individual, all relevant records, notes and files from the solicitors of the subject individual, all financail records and files relating to the assets held either solely or jointly by the subject individual from any financial or banking institution or agency, and documents in their own power, possession and/or control.
Orders Giving Directions typically also provide for examinations of the parties. Depending on any related proceeding, provisions may be neogtiated that examinations from a related proceeding may be relied upon and form part of any examinations that may be ordered. Another provision to consider is whether a de bene esse examination needs to be conducted and videotaped for use at the hearing of the proceeding. In addition, the parties may wish to exam non-parties to the proceeding and seek to include in the Order Giving Directions a provision that they be granted leave pursuant to Rule 31.10 to examine such individuals. For example, in a Will challenge, parties will wish to discover the solicitor who prepared the subject Will (and in respect of any paper or writing being or purporting to be a testamentary document prepared by that solicitor).
With respect to the examination of a non-party, the Court might order pursuant to Rule 75.06(2) that the non-party be served with the motion or application for directions prior to its hearing. The Court may wish to provide the non-party with an opportunity to respond to the motion or application before any order is made that may affect them. Where the examination of a non-party is obviously required, the Court may be content to order that the Order Giving Directions be served within a certain time period and in a certain matter.
It may also be prudent to seek to include a provision excluding the applicability of the Deemed Undertaking Rule, that is Rule 30.1.01 of the Rules of Civil Procedure. Rule 30.101(3) states that: "all parties and their counsel are deemed to undertake not to use evidence or information to which this Rule applies for any purpose other than those of the proceeding in which the evidence was obtained." This may be particularly applicable in a case where there is a possiblity that a solicitor, who is to be examined and/or produce documents, may have been negligent in the performance of his or her services to the deceased or subject individual; in which case the said solicitor may be the subject of a future solicitor's negligence claim.
Have a great day, Craig. --------
