Admissible Evidence - Hull on Estates #176
Listen to: Admissible Evidence - Hull on Estates #176
This week on Hull on Estates, Rick Bickhram and Megan Connolly discuss what types of evidence are admissible throughout the interpretation of a Will.
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Decore Estate, 2009 ABQB 440
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Admissible Evidence - Hull on Estates- Episode #176
Megan Connolly: Hello and welcome to Hull on Estates. You’re listening to episode #176 on Tuesday, August 18, 2009.
Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada. Hosted by the lawyers of
Rick Bickhram: Hi and welcome to another episode of Hull on Estates. I’m Rick Bickhram.
Megan Connolly: And I’m Megan Connolly.
Rick Bickhram: And if you want to be heard on Hull on Estates, you can participate by leaving us a comment. Please e-mail us at hull.lawyers@gmail.com or you can visit our daily blog at estatelaw.hullandhull.com.
So I had a great weekend Megan. How was your weekend?
Megan Connolly: It was fun. I enjoyed the sun where I live and the rain we’ve had all summer although it was a bit sticky for my liking.
Rick Bickhram: Oh absolutely. It was humid but it was definitely a good weekend to get out on the beaches, place some volleyball, rollerblade, bike, all that sort of things I’m sure you’ve done over this past weekend.
Megan Connolly: Yeah. So today we’re talking about what type of evidence is admissible in a proceeding involving the proper interpretation of a Will. We’re looking at a specific case and it’s called the Decore Estate. And it’s a 2009 decision from the Queen’s Bench of Alberta, which is sort of their version of this province’s Superior Court of Justice.
Rick Bickhram: Yes I got this case Megan. I was reviewing it. Now, when you said that this case involved an interpretation issue, I think more particularly what it concerned itself with was whether or not the testator was aware of the value of a specific asset that she bequeathed to her children.
Megan Connolly: Well yeah there were two issues. The case isn’t specific in what the Will said so we’re sort of guessing but there was some issue about whether in deciding how to divide her assets she was aware of the value of one of them being an inn and the second issue was when the beneficiaries of the inn who were her two daughters were supposed to receive the gift. I guess the Will was written in such a way that it wasn’t clear whether they got it on her death or there was to be a delay of a number of years before they received it. So as a result the estate trustees applied to the Court for what we call opinion, advice and direction as to the proper interpretation of the Will.
Rick Bickhram: And what this case focuses on, it’s not the hearing where the judge is giving his opinion, advice or direction. This is an interlocutory hearing where the Court is deciding what type of evidence would be admissible on the hearing of this application.
Megan Connolly: Yeah and in this case there were two proposed categories of evidence. The first is what we call armchair evidence which is where the Court or the judge is supposed to sit in the armchair of the testator and try to look at surrounding circumstances as known to the testator at the time the Will was made and determine what the Will means. And the second category was evidence of the testator’s intention which is what we call extrinsic evidence of what the testator intended to do.
Rick Bickhram: Very well put, Megan. And as I review this case, I note that the Honourable Justice here reviewed and summarized the case law with respect to the armchair and extrinsic evidence. And I’m just going to go through the four principles that the Honourable Justice in this case revisited on the hearing of this apparently motion, application and assessed.
So the first principle is where there is a testamentary document. Now this could be a Will or a Codicil. And that testamentary document is clear and unambiguous. The Court will look to no other evidence outside of the four corners of that document.
Megan Connolly: Right and this is a really important one. It may seem obvious but there are interpretation issues you get where it’s really the Court has to look at the document and maybe looking at law relating into interpretative issues, decide what it means. And in those cases where it’s really just deciding on the meaning of the words and the meaning is relatively clear, then you don’t have to bring in a whole bunch of outside stuff.
Rick Bickhram: The second principle that was considered by this Court considers where a testamentary instrument is unclear as to the intent or in construction, armchair evidence can be receivable. And as Megan described earlier in this podcast, she said armchair evidence is where the judge sits in the armchair of the testator and considers the surrounding circumstances as it appears to the testator in deciding, making a decision on the intention of the testator at the time the Will was executed.
Megan Connolly: Right and the Court also said that where there is ambiguity in the testamentary document, extrinsic evidence of intent is also receivable. But the Court actually said something I think is interesting and very, very important to remember. It’s not enough just to sort of drum up a possible interpretation. The interpretations have to be sort of plausible. The Court isn’t going to start introducing extrinsic evidence if somebody is coming up with sort of a pie-in-the-sky interpretation of something. And I guess the fourth sort of general principle that the Court mentioned was that when there’s reason to believe that the testator made a mistake at the time they were giving instructions for the Will and the mistake was one of fact, not one of law, then both the armchair evidence and the extrinsic intention evidence may be received. However, when it’s merely an issue of law, then that type of evidence won’t be as readily accepted by the Court.
Now one sort of question or issue is what sort of policy issues are involved in the sort of issue of intention evidence. Because it may seem various obvious, you know, if there is a question as to what a Will means and you want to get to the truth, so to speak. Well why wouldn’t all sorts of evidence be sort of admissible? And the Court, I thought, gave a useful discussion as to why a judge should be sort of very, very I guess diligent in considering whether it’s a good idea to allow this information in.
Rick Bickhram: Well I think one of the policy of reasons behind these sort of claims is that there’s a danger that our Court system would be overwhelmed with the flood of claims that are backed by hearsay evidence with respect to interpretation applications. And this is, you know, this would jeopardize the orderly administration of estates.
Megan Connolly: Right. And the second reason that was raised was this, I guess, concern the Court had that by being broad and admitting armchair evidence and extrinsic evidence, it would run the risk of supplanting a written document which is the starting point with the sort of oral narrative. And the purpose of the interpretation application or the purpose of the Court’s advice and direction is to assist in interpretation. It’s not to allow the testator or the deceased to sort of have a do-over when it comes to doing the Will. It might well be that there were mistakes in the Will. But the fact that there were mistakes doesn’t mean that the Court will simply rewrite it. Sometimes, as sad as it is to say, the beneficiaries are stuck with a Will which is clearly drafted but for whatever reason didn’t capture the testator’s intent. And the Court won’t simply replace that document with the results of hearsay evidence.
Rick Bickhram: Again, very well put Megan. This is not a do-over attempt by the testator. And the testator’s intention should not be replaced or substituted by the Courts. But where there’s interpretation like a real, genuine issue concerning the interpretation of the document, then the Courts may again look at the armchair rule and extrinsic evidence.
Megan Connolly: And it’s looking at this sort of evidence. And it says in this decision the judge says look, even with this sort of desire for efficiency in the Court system and a desire to prevent spurious claims, when there’s very sort of compelling evidence, extrinsic or armchair evidence out there that would assist the Court then yes, it should be admissible.
Rick Bickhram: So to me what it seems that the Court does is they kind of balance the four principles of armchair rule evidence and extrinsic evidence and then they look at the policy considerations against introducing these sort of evidences and they balance and they come up with a principle where it may be permissible to allow the sort of armchair rule evidence and extrinsic evidence.
Megan Connolly: Yeah and here in deciding what type of evidence should be admitted, the Court looked not just at this issue of intention evidence versus armchair evidence, etc. It sort of took a slightly more traditional approach and looked at law relating to the admissibility of hearsay. And for those of you that went to law school, there’s a whole sort of string of criminal law cases like the decisions in Star, Con, etc. which deal with that. So there’s some discussion about that. The Court applied the two main touchstones on deciding whether hearsay is admissible which is, is the evidence necessary? Is the evidence reliable? And found that when determining whether extrinsic evidence or armchair evidence is admissible, that the general principles applying to hearsay should apply when making the determination.
Rick Bickhram: And briefly touching on it, the evidence becomes a necessity pretty much where it will advance the inquiry and there is no better existing source of that information or evidence. And the reliability of the information. It pretty much has to come from a source that’s trustworthy. So not tmz.com.
Megan Connolly: Right. I don’t know if anyone looked there Rick. But just going to this issue of reliability, there was, I guess, the Court pointed to the need for something akin to corroboration, meaning that it wasn’t just enough to show up with this hearsay evidence from someone saying this is what the testator intended, for that type of evidence to be admissible. There would also have to be some other additional evidence which supports the same proposition that the proposed hearsay evidence was meant to support. So in this case, the Court looked at the issues that were raised in this interpretation application and looked at the proposed evidence and found that the evidence that was admitted which was proposed would be probative of the issues that were raised in the application and found that as long as it was probative of an issue, it was necessary in the sense that it could advance the inquiry that the Court was required to make and couldn’t be obtained from a better source. And the sort of threshold of reliability is met that the evidence would be admissible. Now I just sort of on a final note want to point out that what the Court was determining in looking at this admissibility issue was in a general sense, the general categories of evidence. The categories being extrinsic evidence and armchair evidence. It was clear that in cases like this, the Court wasn’t to sort of make an inquiry into sort of each particular piece of evidence that was suggested. Instead it should look at it in a categorical manner and that eventually at the hearing of the application, it would be the decision of the judge hearing it to decide whether individual pieces of evidence would be admissible and if so, what weight would be given to them.
Rick Bickhram: And I think that brings us to an end of this week’s discussion. Thanks for listening and thanks for joining me today, Megan.
Megan Connolly: It was a pleasure, Rick. I look forward to podcasting with you again soon.
Rick Bickhram: And we look forward to hearing from you, our listeners. You can send us an e-mail at hull.lawyers@gmail.com. Please be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice of estate law. We hope that you enjoyed the show. I’m Rick Bickhram.
Megan Connolly: And I’m Megan Connolly. Until next week, so long.
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