Hearsay Evidence in Estate Litigation

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Hearsay Evidence in Estate Litigation Dragana Sanchez Glowicki May 8, 2007

MONTRÉAL

TABLE OF CONTENTS I.

INTRODUCTION............................................................................................................... 1

II.

GENERAL PRINCIPLES RELATING TO ADMISSIBILITY OF HEARSAY EVIDENCE . 1

III.

ADMISSIBILITY OF HEARSAY EVIDENCE IN ESTATE LITIGATION........................... 3

IV.

(a)

AS TO STATE OF MIND (CAPACITY/UNDUE INFLUENCE)................................ 3

(b)

ON THE INTERPRETATION OF THE WILL........................................................... 3

(c)

ON THE EXISTENCE OF A WILL .......................................................................... 5

(d)

FROM INTERESTED PARTIES .............................................................................. 5

(e)

LAWYER’S TESTIMONY ........................................................................................ 6

SUMMARIES OF RECENT CASES ................................................................................. 7

Dragana Sanchez Glowicki MILLER THOMSON LLP, 2700, Commerce Place, 10155-102 Street, Edmonton, AB, Canada T5J 4G8 Phone: 780.429.9703, Fax: 780.424.5866, E-mail: [email protected]

with assistance from: Adina Preda MILLER THOMSON LLP, 2700, Commerce Place, 10155-102 Street, Edmonton, AB, Canada T5J 4G8 Phone: 780.429.9785, Fax: 780.424.5866, E-mail: [email protected] Please note: The reproduction of any part of this Paper is prohibited without the permission of the author.

HEARSAY EVIDENCE IN ESTATE LITIGATION I.

INTRODUCTION

The admissibility of hearsay evidence is very important in estate litigation cases. The primary reason is obvious, the person who can state what the true facts are, and clear up any misconception is deceased. This leaves the parties to the action trying to prove their side of the case, without the main witness. The result being that a significant amount of estate litigation is made up of hearsay evidence. Mom told me “X”, or I heard Dad tell his friend “Y”. The Court is left with the difficult job of determining if the evidence is admissible, and if it is how necessary, relevant and reliable the evidence is. This paper will discuss the general rules governing the admissibility of hearsay evidence in estate litigation. II.

GENERAL PRINCIPLES RELATING TO ADMISSIBILITY OF HEARSAY EVIDENCE

The general rule against hearsay evidence states that written or oral statements made by persons outside of Court are inadmissible, if tendered either as proof of their truth, or as proof of the assertions contained in the statements.1 Traditionally, there were several categories of exceptions to the hearsay rule: declarations against interest; declarations made in the course of a business duty; declarations as to reputation; declarations as to pedigree and family history; statements contained in ancient documents as evidencing a proprietary interest in land; statements in public documents; statements indicating bodily or physical state; statements indicating an existing mental or emotional condition, state of mind, or intention; declarations accompanying and explaining relevant acts; excited utterances accompanying the act; testimony in former proceedings; admissions of a party. More recently, and in addition to these traditional exceptions, the Supreme Court of Canada has advocated a more flexible approach to the hearsay rule, often referred to as the “principled approach”. Under the principled approach, the criteria for admitting hearsay evidence is its necessity and reliability. Necessity refers to the relevance and availability of the evidence. Whereas, reliability is concerned with the circumstances in which a statement was made.2

1 2

J. Sopinka et al., The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999) at para. 6.2. See R. v. Khan, [1990] 2 S.C.R. 531.

–2– When the Court assesses the reliability of hearsay evidence, the Court considers whether: A [hearsay] statement … is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken, [in which case] the hearsay evidence may be said to be “reliable”.3 The Court will also apply what is called a “threshold reliability” test.

This test requires

circumstantial indicators or guarantees of reliability to be present, such as “whether a [declaration] is likely to be fabricated or inaccurate, as opposed to true or accurate”.4 Circumstantial indicators or guarantees of reliability include: whether the statement was made on oath, whether it is made in the presence of the trier of fact, whether the maker had a motive to falsity…whether, in all the known circumstances, the statement could have been expected to have changed significantly had the declarant testified and been cross-examined.5 The “threshold reliability” test is applied to the statements made by the original makers, not to the reliability of the witness repeating the statements. In assessing reliability, all of the circumstances in which the statements were made must be considered, including the timing of the statements, the demeanour of the declarant when the statements were made, the intelligence and understanding of the declarant, and the absence of any reason to expect fabrication in the statements.6 It is important to note that, in determining the admissibility of hearsay evidence, it is the reliability of the declarant that is in issue, more so than the credibility of the witness to the hearsay. The credibility of the witness is important when the Court determines what weight ought to be attributed to the hearsay evidence, if and when it is admitted. If the Court determines that the threshold reliability test has been met, then the hearsay evidence will be admitted. However, the trier of fact must still determine how much weight, if any, to give to the evidence.7 As stated in R. v. Starr,8 in assessing the admissibility of hearsay:

3

R. v. Smith, [1992] 2 S.C.R. 915, 75 C.C.C. (3d) 257 at 270.

4

Augustine v. Inco Ltd., (2006) CanLII 21783 at para. 5 (Ont. S.C.).

5

R. v. Hart (1999), 135 CCC (3d) 377 at para. 50(N.S.C.A.) (emphasis added).

6

R. v. Khan, supra note 2; see also Holst v. Holst, 2001 BCSC 1124 at para. 14.

7

Dmytrow v. Dmytrow, [2000] 10 W.W.R. 165; 147 Man. R. (2d) 120, 2000 MBQB 90 at para. 26 (emphasis added).

–3– under the “principled approach” a Court must not invade the province of the trier of fact and condition admissibility of hearsay on whether the evidence is ultimately reliable. However, it will need to examine whether the circumstances in which the statement was made lend sufficient credibility to allow a finding of threshold reliability. In some cases, the Courts have collapsed the issue of credibility of the witness into the assessment of the reliability of the statement under the “principled approach”.

Where this

approach is taken, the witness’s lack of credibility, or the unlikelihood of the hearsay statement having been made, will be a factor that negates the reliability of the hearsay evidence.9 III.

ADMISSIBILITY OF HEARSAY EVIDENCE IN ESTATE LITIGATION (a)

AS TO STATE OF MIND (CAPACITY/UNDUE INFLUENCE)

Most often, hearsay evidence may be sought to be adduced in respect of the testator’s state of mind at certain material times, the testator’s intentions when making the Will, or the existence of a Will. Where the deceased’s capacity is put in issue, hearsay evidence will generally be admissible under the traditional exception to the hearsay rule, which allows statements evidencing one’s state of mind.10 In such circumstances, it would not be necessary to consider the “principled approach”. As will be noted below, however, the weight to be accorded to such evidence would remain a separate issue for consideration by the trier of fact. (b)

ON THE INTERPRETATION OF THE WILL

Where the interpretation of a Will is in issue, the objective of the Court is to ascertain the testator’s actual or subjective intention through the “utilization of common sense and a determination of the plain and ordinary meaning of the wording of the Will itself.”11 As such: the court interpreting the Will must endeavour to put itself in the position of the testator at the time the Will was made and … the language of the testator must be read in the light of all the circumstances that surrounded and were known to him or her at

8

[2000] 2 S.C.R. 144 at para. 217.

9

See, e.g., Gordon v. Wyatt Company, (1998) ABQB 174 at para. 32; Re Pierce Estate, (2003) NSSC 110 at paras. 61-62.

10

See, e.g., Re Grant Estate, [1971] 1 W.W.R. 555 (B.C.S.C.).

11

McNeil v. McNeil, 2006 ABQB 636 at para. 83.

–4– the time so as to endeavour to give effect to the intention of the testator.12 The parole evidence rule prohibits the introduction of evidence of an oral agreement which modifies or varies the terms of a complete, unambiguous written document, such as a Will. Therefore, generally, parole evidence cannot be adduced to contradict, add to, or explain the contents of a Will. As noted in McNeil v. McNeil, Once a Will is reduced to writing, the intent of the testator takes second place to what is expressed in the Will and can be implemented only to the extent that the Will supports it. Therefore, evidence of a testator’s intention that cannot be supported by the Will itself is not admissible.13

However, where the language of the Will is ambiguous as to the intention of the testator, evidence of the surrounding circumstances known to the testator at the time when the Will was made is admissible pursuant to the “armchair rule”.14 As such, extrinsic evidence may be used to aid in the interpretation of a Will, where the nature and effect of that evidence is to explain what the testatrix has written. Extrinsic evidence may consist of verbal communications or non-testamentary writings, and it is the intended purpose of such evidence, rather than its nature (verbal versus written) that governs its admissibility.15 Extrinsic evidence may relate to such matters as the character and occupation of the testatrix; the amount, extent and condition of the testatrix’s property; the number, identity and general relationship to her immediate family, relatives, and any other natural objects of the testatrix’s bounty.16

12

Bergey v. Cassel (1995), 8 E.T.R. (2d) 161, 103 Man. R. (2d) 202 at 204 (Q.B.). See also Laws et al. v. Rabbitt et al., 2006 BCSC 1519 at para. 51; Re Tyhurst Estate, [1932] S.C.R. 713 at 719.

13

McNeil, supra note 11 at paras. 111 and 112 (citations omitted).

14

Ibid. at para. 112; see also Venczel v. Kovari (2000), 32 E.T.R. (2d) 137 at para. 10 (Ont. Sup. Ct.J.).

15

Feeney’s Canadian Law of Wills, 5th ed. (Toronto: Butterworths, 2000-) at para 10.30.

16

Stafford Estate v. Thissen (1996), 12 E.T.R. (2d) 201 at paras. 13 and 17.

–5– (c)

ON THE EXISTENCE OF A WILL

Where the existence of a Will is the issue before the Court, statements made by the purported testator to a third party, which may prove that a Will was made, are admissible for the truth of what was said.17 In this case, the hearsay evidence may be deemed admissible under either the traditional exceptions to the hearsay rule or the principled approach. Where the hearsay evidence originates from the testator, who was the declarant, the necessity criteria under the principled approach will generally be satisfied, and the admissibility of the evidence will then depend, to a large extent, on its reliability.18 A separate issue from the necessity and reliability of the hearsay evidence itself is the issue of the reliability of the witness, which as noted above, is a factor going to the weight of such evidence. In many cases, the witness bringing forth hearsay evidence will be an interested party, such as a beneficiary or claimant to the estate. While Courts will weigh such considerations in determining the admissibility of evidence, they may not necessarily constitute a bar to admissibility, particularly if that witness’ evidence is supported by other evidence. It should be noted that evidence which amounts to double-hearsay will not be admissible under any circumstances.19 Examples of double hearsay include, for example, second-hand accounts of conversations between someone other than the witness and the deceased. (d)

FROM INTERESTED PARTIES

In addition to the general principles relating to the admissibility of hearsay evidence, in Alberta, the Alberta Evidence Act, R.S.A. 2000, c. A-18 s. 11 (the “Act”) states that: In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposed or interested party shall not obtain a verdict, judgment or decision on that party’s own evidence in respect of any matter occurring before the death of the deceased person, unless the evidence is corroborated by other material evidence. [emphasis added]

17

Sugden v. Lord of St. Leornards (1876), 1 P.D. 15 (C.A.); see also Tsang v. Chang Estate, 1992 CanLII 308 (B.C.S.C.).

18

See Dmytrow, supra note 7 at para. 26.

19

Laws et al. v. Rabbitt et al., supra note 12 at para. 57.

–6– The effect of s. 11 is to require that, in estate litigation, the evidence of an interested party be corroborated. However, s. 11 does not require that every fact necessary to establish the cause of action be corroborated. The corroborating evidence may come from another witness, documents, or from the circumstances of the case.20 The following principles apply to the assessment of corroboration under s. 11 (formerly s. 12 of the Act):21

•

The statute does not require independent proof of the interested party’s evidence and, as such, the evidence relied on as corroboration need not completely prove an agreement or go as far as the party’s evidence;

•

The statutory prohibition differs from the common law and should not be extended any further than its precise words require;

•

The test for corroboration is whether the evidence in question makes the interested party’s evidence more probable or “strengthened by some evidence which appreciably helps the judicial mind to believe one or more of the material statements”;

•

It is enough that the testimony produces inferences or probabilities tending to support the truth of the interested party’s statement; and

• (e)

Corroboration may consist of circumstantial evidence and fair inference. LAWYER’S TESTIMONY

Please refer to Nancy Golding’s paper presented in conjunction with this Paper.

20

Lynch Estate v. Lynch Estate (1993), 138 A.R. 41 at para. 24 (Q.B.).

21

Stephenson v. McLean (1977), 4 Alta. L.R. (2d) 197 at 209-10(T.D.).

–7– IV.

SUMMARIES OF RECENT CASES22

Stanton v. Stanton Estate23 Facts: The wife of the deceased challenged the Will on the basis of suspicious circumstances. The deceased was 81 years old when he married his housekeeper, who was 42 at the time. A few months after the marriage, the deceased executed a new Will in which he left his cars to his wife, and the residue of his estate to his adult daughter. The deceased’s daughter sought to uphold the Will. Both parties introduced evidence as to statements made by the deceased to each of them. Issue: Was the hearsay evidence admissible? Order: In ruling on the admissibility of the evidence, the Court made the following statement: A common hearsay rule exception, based upon necessity due to the death of the declarant, is the admissibility of the words of the deceased testator through others. A distinguishing factor in the instant case is that evidence in question is ‘double hearsay’ because the testator’s words are the assertions of another person; however, I am not persuaded that the distinction is one of consequence in the circumstances. In this case the other person is the defendant who testified at the trial and was afforded the opportunity to deny or explain the words attributed to her. If the other person were not a party to the proceedings, then it may well be that ‘double hearsay; evidence would be objectionable as inadmissible hearsay depending on the purpose for which it was tendered.24 Babchuk v. Kutz25 Facts: The issue before the Court was whether the deceased had testamentary capacity when he gave instructions for preparation of and execution of his Will. The Court canvassed: 1) evidence surrounding the deceased’s stated testamentary intentions during the years before his death; 2) the evidence about his relationships with his daughters, son and grandchildren; and 3) the medical evidence pertaining to his stay in hospital, especially in relation to the day when he executed his Will. Most of the evidence was hearsay.

22

NOTE: the cases summarized are those in which the court determined that the evidence sought to be admitted was, in fact, hearsay and went on to consider its admissibility primarily under the principled approach.

23

(2006), 27 E.T.R. (3d) 215, 2006 BCSC 1574.

24

Ibid. at para. 40.

25

2006 ABQB 422.

–8– Issue: Was the hearsay evidence admissible? Order: In addressing the evidence before it, the Court noted that most of the evidence pertaining to the deceased was hearsay. Without undertaking any analysis of the admissibility of such evidence, the Court stated merely that “[n]ormally hearsay evidence of this kind would not be permitted, but when a person is deceased it is the best evidence we have.” McNeil v. McNeil26 Facts: A contingent beneficiary of a residuary trust, set up under the Will of her deceased father, challenged a decision of the trustees of that trust. The primary issue before the Court was whether it could intervene in the trustee’s exercise of their discretion. Both the beneficiary and one of the trustees led evidence of conversations with the deceased, in which the deceased expressed certain intentions regarding the purpose of the trust. The witnesses’ evidence was contradictory. Issue: Was the hearsay evidence admissible? Order: The Court held that neither witnesses’ evidence about the deceased’s intentions or wishes was admissible to interpret the provisions of the Will or the trust contained in the Will. The Court noted that, where the language of the Will is ambiguous as to the intention of the testator, evidence of surrounding circumstances known to the testator when the Will was made is admissible under the “armchair rule”. However, the armchair rule allows only for consideration of surrounding circumstances, not for uncorroborated hearsay. The Court found that, in that case, the testator’s intention was clear from the Will, and that the witnesses’ testimony (hearsay) was not admissible under the principled approach. The Court further noted that using the “armchair rule” to allow the contradictory evidence of the witnesses as to the testator’s intentions would create ambiguities rather than solve them. Laws et al. v. Rabbitt et al.27 Facts: Two of the beneficiaries of the deceased’s Will applied for construction of the deceased’s Will.

26

2006 ABQB 636.

27

2006 BCSC 1519.

–9– Issue: What was the correct construction of the Will? Order: In addressing the matter of evidence that may be considered in the course of construing a Will, the Court noted that it was entitled to consider the “surrounding circumstances” in order to discern the testator’s intention. However, the Court held that it was not permissible for a Court of construction to consider the evidence of the party who prepared the Will as to the testator’s intention. Further, the Court held that the evidence of a witness testifying as to the understood intention of the testator was not admissible in construing the Will. As such, the Court refused to consider the testatrix’s intentions as described in an Affidavit of the executrix. The Court did, however, make note of a number of surrounding circumstances, which it considered in construing the Will. Tiffin Estate v. Tiffin28 Facts: The plaintiff sought to recover from the defendant a portion of the deceased’s estate on the basis that the deceased lacked testamentary capacity and was unduly influenced when the Will was made. Both parties sought to introduce hearsay evidence relating to statements allegedly made by the deceased. Counsel for the plaintiff argued that hearsay evidence would be admissible provided that it fell within one of the traditional exceptions to the hearsay rule, but not if it was necessary to rely on the principled approach. The plaintiff’s argument was that most of the hearsay evidence would be uncorroborated and, as such, the reliability threshold for admissibility of evidence could not be met.29 Issue: Was the hearsay evidence admissible? Order: The Court did not address the plaintiff’s argument, ruling that the evidence was admissible under traditional exceptions, such that it was not necessary to consider the principled approach. Specifically, the traditional exception to the hearsay rule allows for hearsay evidence relating to statements made which created legal rights or liabilities (such as a gratuitous disposition of property or a gift) to be admissible, in that the relevant issue is the fact that the statement was made, rather than its contents. Similarly, hearsay evidence relating to the deceased’s state of mind was admissible under the

28

2004 SKQB 60.

29

With due respect, that argument appears to confuse the issue of reliability vis-à-vis admissibility and reliability of the testimony, the latter of which relates to weight. This distinction has been emphasized in a number of cases.

– 10 – traditional state-of-mind exception to hearsay, the state of mind of the deceased having been put in issue in this case. Stephens v. Austin30 Facts: The plaintiffs brought an action to set aside the deceased’s Will and Codicil, leaving his estate to his home care nurse, on the basis of undue influence. At trial, various witnesses testified as to statements allegedly made by the deceased. The trial judge allowed the evidence to be heard and ruled on its admissibility at the conclusion of the trial. Issue: Was the hearsay evidence admissible? Order: The judge held that the statements were admissible under various traditional exceptions to the hearsay rule (as statements against pecuniary or proprietary interest, or declarations of an existing state of mind or intention) as well as under the principled approach. The judge noted that the necessity criterion was met because the declarant was deceased. The judge expressed some concern regarding the criterion of reliability where the deceased’s statements were reported by interested parties. Nevertheless, the judge held that such statements met the threshold requirement of reliability, and the fact that the witnesses relating the statements had an interest in the outcome of the case would be adequately dealt with in determining the weight to be attributed to such statements. M.V. v. L.V. (Estate of)31 Facts: One of the issues before the Court was the alleged paternity of one of the claimants to the estate, who sought to have the Will construed so that he would be included among the beneficiaries, as one of the children of the deceased. The claimant had been born during the time that his mother and the deceased were married, which gave rise to a legal presumption under the applicable legislation, that he was the child of the deceased. The deceased had denied paternity, both in the divorce proceedings with the claimant’s mother and in conversations with others. The Court considered whether statements

30

(2003), 50 E.T.R. (2d) 255, 2003 BCSC 341.

31

(2003), 227 D.L.R. (4th) 549, 2003 MBQB 110.

– 11 – allegedly made by the deceased to witnesses, regarding the claimant’s paternity, were admissible despite being hearsay evidence. Issue: Was the hearsay evidence admissible? Order: The Court noted that, notwithstanding the modern principled approach to hearsay, the traditional exceptions to hearsay continued to apply. Declarations as to pedigree and family history are a traditional exception to the hearsay rule. The Court stated that: This exception has been the basis for admitting statements made by parties with knowledge of the facts as to paternity. The reliability of the statement is assured if the statement is made ante litem motam (at a time anterior to the commencement of any actual controversy upon the point in issue). It would seem that, where there is litigation contemplated or pending on the point, such statements are not admitted as being statements possibly intended to advance the interests of one party or the other to the controversy. In this case, the Court noted that the deceased had already litigated the paternity issue with the claimant’s mother during the divorce proceedings. His subsequent declarations against paternity were, therefore, not admissible under the traditional exception to hearsay. The Court noted that the traditional exception allowed admission of paternity, as admissions against interest. However, it would not allow denials of paternity. Further, the Court held that there was no factual basis for the deceased’s statements, as he did not know positively that he was not the claimant’s father (no DNA testing having been done). The lack of a factual basis rendered the deceased’s comments a mere opinion, rather than a declaration of paternity. The Court excluded the deceased’s statements. Bellinger v. Nuytten Estate32 Facts: The issue before the Court concerned the disposition of the deceased’s estate among her children. Each party made various claims upon the estate, and adduced hearsay evidence in support of its respective position. Although no objections were made by any of the parties, the Court nevertheless considered the admissibility of the hearsay evidence. Issue: Was the hearsay evidence admissible?

32

2002 BCSC 571.

– 12 – Order: The Court noted that the governing principles applicable to the admissibility of hearsay evidence are its reliability and necessity. Where the declarants are dead and direct evidence is not available, necessity is generally establish. The Court noted that the ultimate reliability of the evidence, and the weight to be accorded to it, was a separate matter to be determined at the conclusion of the trial, by the trier of fact. Similarly, the reliability of the witnesses who offer such hearsay evidence was also a matter of weight, and not a condition of the admissibility of the evidence. Prefontaine v. Arbuthnott33 Facts: The issue before the Court was whether a pre-typed Will form, partially completed, should be admitted to probate as a Holograph Will, or as a document embodying the deceased’s testamentary intentions. The matter proceeded by way of Affidavit evidence, and the issue of hearsay evidence in the Affidavits was raised. Issue: Was the hearsay evidence admissible? Order: The Court found that the Affidavits did contain hearsay, in the form of statements allegedly made by the deceased to the deponent, and considered the admissibility of such evidence under the principled approach. The Court held that some of the evidence was necessary and reliable – for example, statements made by the deceased in her own home with respect to her Will. However, the Court refused to accept some of the evidence, such as general statements about how much the deceased thought of the deponent. The Court emphasized that the admissibility of the evidence and its weight were separate matters. Mitchell v. Mitchell34 Facts: The issue before the Court was whether the deceased executed his Will while unduly influenced by one of his sons. One of the witnesses at trial (who was not a party to the dispute) testified that the deceased had told her that his son had orchestrated the preparation of the impugned will. Issue: Was the hearsay evidence admissible?

33

2001 MBQB 45.

34

(2001), 57 O.R. (3d) 259, 42 E.T.R. (2d) 295 (S.C.J.).

– 13 – Order: In determining the admissibility of this hearsay evidence, the Court applied the principled approach, and noted that the necessity criterion had been satisfied. However, in considering the reliability criterion, the Court noted that the statements made by the testator were contradicted by evidence from another independent witness (the testator’s solicitor), who testified that the testator had given instructions for the Will without his son being present. Further, the Court indicated that, even if the evidence was ruled admissible, it would not be accorded significant weight due to the inconsistency with the other evidence. Holst v. Holst35 Facts: The issue before the Court concerned the Codicil executed by the deceased, which was subsequently never found after his death. The Codicil had been given to the deceased for safe-keeping. In it, the deceased deleted one of his children as both an executor and co-beneficiary of his estate. The plaintiffs, who sought to establish that the Codicil had been intentionally destroyed, sought to adduce hearsay evidence of statements made by the deceased. Issue: Was the hearsay evidence admissible? Order: The Court assessed the admissibility of the evidence under the principled approach, which evidence must meet the necessity test in view of the declarant’s death. In considering the reliability of the evidence, the Court reviewed the circumstances in which the statements had been made. In particular, in ruling that the evidence was admissible, the Court noted that: the deceased was of sound mind when he made the statements; the statements were made to persons whom he had no reason to mislead; most of the statements were made to a number of persons; none of the statements were made in the heat of the moment; all of the statements were made directly to the witnesses who were tendering the evidence. Acreman Estate (Re)36 Facts: The executor of the deceased’s estate applied to the Court for construction of a clause in the Will. The testatrix left a certain bequest to her sister, or her sister’s “issue”. The sister

35

Supra at note 6.

36

2001 BCSC 678.

– 14 – had died and the construction of the term “issue” would decide the distribution of approximately $54,000.00. Under one possible construction, the bequest would be divided among the children of the beneficiary (the testatrix’ sister). Under the other construction, the bequest would be divided among the lineal descendants of the beneficiary. In Court, a son and daughter of the beneficiary made submissions in favour of the interpretation of “issue” as “children”, rather than as lineal descendants. Issue: What evidence would be admissible to determine what was the correct construction of the Will? Order: The witnesses made 3 points unrelated to the wording of the Will, which the Court addressed at some length. First, the solicitor for the executor of the estate swore an Affidavit to obtain probate of the Will, which included a list of persons stated by the solicitor to be the only beneficiaries. That list included only the children of the beneficiary. The Court rejected this evidence as binding or even persuasive as to the meaning of the terms of the Will. Second, the witnesses advised the Court that the members of the next generation of the beneficiary’s descendants made it clear that they had no desire to receive bequests. The Court held that the attitude of these persons could not determine the proper interpretation of the Will. Third, the witnesses advised that they were aware of conversations between the testatrix and her sister (the deceased beneficiary), which disclosed an intention on the part of the testatrix to limit the bequest to her sister’s children. The Court held that these statements were double hearsay, and noted that the Court is precluded from considering such evidence. In concluding, the Court stated that: I do not doubt [the witnesses] are honestly attempting to assist the [C]ourt. However, I ask them to appreciate that if the [C]ourt were to accept such evidence there could be no limit to admissibility of collateral evidence of a testatrix’s intention. Any interested party could assert a different anecdote or recollection about a testatrix’s intention. Since there is no way to verify such competing assertions, the [C]ourt must rely on the [W]ill alone. Dmytrow v. Dmytrow37 Facts: The issue before the Court was the determination of whether certain assets were included in the deceased’s estate, who had died intestate. The deceased’s husband had

37

[2000] 10 W.W.R. 165, 147 Man. R. (2d) 120 (Q.B.).

– 15 – died before her, also intestate. A dispute arose between the children of the deceased regarding the assets of the estate. In Court, all parties led hearsay evidence regarding statements made by the deceased and her husband. Issue: Was the hearsay evidence admissible? Order: The Court allowed the evidence to be led, and ruled on its admissibility at the end, on the basis of the principled approach. Before turning to the statements allegedly made by the deceased, the Court dealt with the question of the reliability of the evidence of the witnesses (i.e. the credibility of the witnesses themselves). The Court noted that, because of their respective interest in the estate, the testimony of three of the deceased’s children was “obviously suspect”. However, the Court also noted that nothing in the direct of cross-examination of those witnesses led to concerns that they were being untruthful. As such, the Court was satisfied that they were accurately recounting their conversations with their deceased parents. In dealing with the admissibility of the hearsay evidence, the Court held that the necessity criterion had been satisfied because both declarants were deceased. Further, the Court found that there were no circumstances suggesting that the declarants were either mistaken or untruthful as regards to the events they related or discussed with the witnesses. The Court ruled that the hearsay evidence of the three children of the deceased was admissible, and rejected the evidence of another of the deceased’s children, which contradicted the evidence of the three children. Sperling Estate v. Heidt38 Facts: The executor and sole beneficiary of the deceased’s estate applied to the Court to set aside an agreement for sale of land made by the deceased shortly before his death, on the basis that it was an unconscionable transaction. The defendant (the purchaser of the land) testified as to statements made by the deceased regarding his reasons for selling the land. Issue: Was the hearsay evidence admissible? Order: The Court held that the hearsay evidence was admissible on several grounds, under the traditional exceptions to the hearsay rule: the evidence was admissible because it was

38

(1999), 178 Sask. R. 192 (Q.B.).

– 16 – an admission by a party; as an explanation for the impugned transaction; and as an admission against proprietary interest. The Court did not make reference to admissibility under the principled approach. B.(M.) (Trustee of) v. B.(B.L.)39 Facts: The issues before the Court involved the transfer of certain lands by the dependant adult to her son. Subsequent to the impugned transfer, the transferor had become incapacitated by reason of Alzheimer’s disease, and a Trustee was appointed, who commenced an action against the transferee for return of the lands. During the trial, it became evident that several witnesses would be called to testify as to statements made to them by the dependant adult. Issue: Was the hearsay evidence admissible? Order: On a voir dire to determine the admissibility of hearsay evidence, the Court determined that such statements would be admissible for two purposes, pursuant to recognized exceptions to the hearsay rule: (i) as evidence of the verbal part of the act of transferring the lands, and (ii) as evidence of the state of mind of the dependant adult at the time of the transfer. The Court noted that: Overlaid are the concerns of necessity and the circumstantial guarantee of trustworthiness or reliability as well as relevance. The question of necessity appears to be beyond doubt here. Reliability calls into question the credibility of the various reporting witnesses and any particular motive or bias which they may bring to their testimony. That will be for the Court to judge [at trial]. Lanterman Estate v. Lanterman40 Facts: The executors of the estate brought an application seeking the direction of the Surrogate Court with respect to the interpretation of certain clauses in the Will and Codicils of the testator. One of the respondents, the testator’s brother, tendered evidence of statements made by the testator about the testator’s wishes with respect to the disposition of his estate. Issue: Was the hearsay evidence admissible?

39

1997 CarswellAlta 1122 (Q.B.).

40

(1997), 202 A.R. 285, 18 E.T.R. (2d) 254 (Surr. Ct.).

– 17 – Order: In considering the admissibility of such hearsay evidence, the Surrogate Court noted that it did not fit into any of the traditional exceptions to the hearsay rule. Further, the Court noted that the law governing Wills is clear in that direct declarations of intent are generally inadmissible to prove the contents of a Will unless there is an ambiguity in the Will. The Court stated that an argument for admissibility of the hearsay evidence, as extrinsic evidence, on the basis an ambiguity in the Will was unlikely to succeed, given the wording of the Will in this case. However, the Court found that there was a distinct possibility that, if the matter were to proceed to trial, the testator’s statements would be found admissible under the principled approach. The Court also noted that any concerns regarding the motivation of self-interest on the part of the witness to the hearsay statements would go to the weight of such evidence. Halfpenny v. Holien41 Facts: The issue before the Court was the disposition of the deceased’s estate, consisting of cash in a joint bank account held with one of her sisters. The account had attached to it a right of survivorship and, as such, the surviving sister took legal title to the funds after the deceased’s death. The other surviving sister advanced a claim against the funds. The defendant sought to adduce evidence of statements made by the deceased. Issue: Was the hearsay evidence admissible? Order: The Court noted that the statements were admissible as evidence of the deceased’s state of mind regarding her reasons for making a certain disposition (in this case, opening a joint bank account with an attached survivorship right). Further, the Court held that the statements were also admissible under the principled approach, finding that both necessity and reality criteria were met. The Court noted that “there is obviously a circumstantial guarantee of trustworthiness where one is indicating a desire that her estate devolve a certain way”. With respect to the credibility of the witness testimony, the Court found that the defendant was credible, noting that her evidence was not undermined in an examination for discovery and was corroborated by the fact that the deceased had instructed her counsel to open the joint account and to check off the “joint survivorship” box.

41

(1997), 27 B.C.L.R. (3d) 186 (S.C.).

– 18 – Robertson v. King Estate42 Facts: The plaintiff claimed that she was entitled to exclusive use for her lifetime of certain lands belonging to the deceased or, alternately, that she was the beneficial owner of the lands. The deceased’s Will did not refer to the plaintiff’s right to reside on the land or to make continued use of it. The plaintiff testified that the deceased had told her that he would be giving her the land and that she could reside there as long as she chose. The plaintiff’s counsel argued that the statements were not hearsay because they were not adduced as proof of their contents, but rather as proof of having been made. Issue: Was the hearsay evidence admissible? Order: The Court noted that, on the latter basis, they would be admissible (since their hearsay quality would be removed), but that, as such, they would be of no assistance to the plaintiff. The Court went on to consider the admissibility of the plaintiff’s evidence, as hearsay, for the truth of its contents. The Court held that the statements could be admissible, under the state-of-mind exception to hearsay, insofar as their contents related to the deceased’s state of mind. Further, the Court held that the statement would be admissible under the principled approach, despite its reservations concerning reliability (absent evidence of the circumstances in which the statements were made). However, the Court ultimately held that, even if the statements were admitted, they would be of little assistance to the plaintiff since they would have to be weighed against the written Will, properly executed shortly before the deceased’s death, which showed no intention of transferring or granting a life interest in the lands to the plaintiff. Murphy Estate (Re)43 Facts: The executor of the deceased’s estate applied for proof in solemn form of the deceased’s last Will. The principal issue before the Court was whether the apparent alterations to the Will were made prior to the execution of the Will. One of the alterations made changed the beneficiary of certain property in the Will. In Court, the new beneficiary argued that he was entitled to that property, if not under the Will, then as a result of a constructive trust arising from certain statements made by the deceased. Hearsay

42

1999 ABQB 167.

43

(1998), 170 N.S.R. (2d) 1 (N.S.S.C.).

– 19 – evidence was presented, in the form of statements made by the testatrix subsequent to the execution of the Will, regarding the alterations to the Will and the testatrix’ intentions. Issue: Was the hearsay evidence admissible? Order: The Court held that the hearsay evidence was not admissible to rebut the presumption that the alterations were made after the execution of the Will. However, the Court held that the hearsay evidence was admissible with respect to the constructive trusts argument. Tsang v. Chang Estate44 Facts: The issue before the Court concerned the validity of a one page document purporting to be the deceased’s last Will. The purported Will provided for a different disposition of the estate than an earlier Will. The deceased’s brother testified that, subsequent to the alleged execution of the second Will, he had a conversation with the deceased in which she told him that she had made a Will and that he would be a beneficiary of her new Will (he was not a beneficiary under the earlier Will). Issue: Was the hearsay evidence admissible? Order: Citing Sugden v. Lord of St. Leonards,45 the Court held that, where the existence of a Will is put in issue by the contention that a purported Will was never executed by the testator, statements made by the testator that may prove the Will was made, are admissible for the truth of what was said. The Court ruled that the testimony of the deceased’s brother was admissible but, nevertheless, had no probative value because the witness was not consistent in his testimony. The Court found that, as a result, the witness had impaired the weight that could be attached to his evidence where that evidence served his interest.

44

1992 CanLII 308 (B.C.S.C.).

45

Supra note 17.