Evidentiary Challenges in Estate Litigation
One of the unique challenges of estate litigation is that the star witness is, almost always, dead. How do we then address the myriad of allegations that can be made against the Deceased or his or her Estate - which are unfortunately easy to make and expensive to defend - when an estate trustee has limited information available to defend against such allegations?
Section 13 of the Evidence Act R.S.O. 1990, c. E.23 specifically addresses this unique aspect of estate litigation, and aims to prevent claims against estates that are based on mere allegations. This provision requires that there be independent corroboration of evidence in claims against estates.
Section 13 of the Evidence Act provides, as follows: “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.”
In the recent Ontario Superior Court decision in Botnick et al. v. The Samuel and Bessie Orfus Family Foundation et al., 2011 ONSC 3043 (“Bessie Orfus Estate”), the Honourable Mr. Justice Penny considered Section 13 of the Evidence Act in the context of a summary judgment motion.
Following the Ontario Court of Appeal’s decision in Burns Estate v. Mellon, 2000 CanLII 5739 (ON CA), Justice Penny stated that “Section 13 of the Evidence Act requires that there be corroboration of material facts alleged by an opposite or adverse party of any matter occurring before the death of the testator. This requirement exists to address the obvious disadvantage faced by the dead: they cannot tell their side of the story or respond to the livings’ version of events.”
Justice Penny went on to provide the following direction to litigators: “Not every particular of the party’s evidence need be corroborated but the material evidence in corroboration must be independent of the opposite or adverse party and must appreciably help the judicial mind to accept one or more of the material facts deposed to. It must materially enhance the probability of the truth of the adverse party’s statement.”
The decision in the Bessie Orfus Estate reminds us that in all stages of prosecuting or defending a claim against an estate – whether determining the initial terms of an Order Giving Directions, considering a summary judgment motion, preparing for mediation, examinations, productions, trial, etc. - one must keep in mind the requirement of corroboration under Section 13 of the Evidence Act.
Thanks for reading,
Saman M. Jaffery
