Estate litigation can be won and lost in Ontario on the Court’s technical application of two important provisions of the law dealing with evidence – Section 13 of the Evidence Act and the common law of hearsay. The law provides that a claim on the deceased’s estate shall not succeed if the only evidence to support it is oral and is unsupported by any document. In other words, the speaking living shall not defeat the silent dead. A recent decision of the Court of Appeal in Brisco Estate v. Canadian Premiere Life Insurance demonstrates that the interplay of s. 13 and the evidentiary law of hearsay can completely change the outcome of a case. It is the cause of some frustration to litigants in estate matters that they believe they can marshal the evidence to prove their case and then they face the road-blocks on the evidence the court will or will not hear. The law of hearsay is so complicated that it was a subject of a twelve volume treatise by the American legal scholar Wigmore; that treatise remains of great persuasive value to the Ontario courts even today. To add another layer to the law of hearsay, since the publication of Wigmore, the Canadian courts have moved towards what is called the “principled approach” to evidence, which means that they will allow in almost any evidence as long as there is some foundation laid as to its reliability.

Let’s return to Brisco Estate. The beneficiaries of the deceased’s life insurance policy alleged that the policy had been cancelled by the deceased by mistake. The insurer presented evidence of written internal records of cancellation but, surprisingly, the jury ruled in favour of the beneficiaries and found that the insurance policy had never been cancelled. A most surprising result in light of s. 13. Where was the supporting written document?As a side note, it is rare that juries sit on estate trials in Ontario. Perhaps that is a good thing.The evidence the beneficiaries wanted to put forward at trial met the pure definition of hearsay – statements made by their father to them while alive. This evidence breaches the principle of direct evidence in that witnesses are merely repeating what they had heard.At trial in Brisco Estate, the court allowed the jury to hear the hearsay evidence of belief by the deceased that he had the life insurance in place, bolstered by evidence that he was a shrewd businessman and was meticulous with his affairs. At trial, the court allowed the evidence under one of the exceptions to the hearsay evidence rule – it was for “the purpose of evidencing belief and state of mind” as opposed to proving the fact of whether the insurance was in place. Not sure the jury got the distinction.On appeal, the Court of Appeal overruled the trial judge and found that the evidence did not meet the exception to the hearsay evidence rule but then allowed it to be maintained under the principled approach. If this evidence had been rejected on all grounds by the Court of Appeal, the beneficiaries would no doubt have come up losers in the litigation. Are you confused yet?Then the Court of Appeal moved on to s.13. Under s. 13 the court can at least consider awarding judgment if it is presented with a single independent document contemporaneous with the matters in issue. A scrap of paper with a handwritten note will do. S. 13 was the insurer’s trump card in that the beneficiaries had no written evidence the insurance was in place. The only written evidence was that the insurance was not in place by way of a record of a conversation cancelling the policy.The insurer was so confident that it actually moved for dismissal at the end of the trial on the sole basis that there was no written evidence to support the existence of insurance and so it would win under S. 13. It was wrong.The Court of Appeal got creative. It held that s. 13 did not apply on the basis that this was an action by beneficiaries under a life insurance policy and not an action by heirs of an estate. It quoted extensively from Wigmore (which is always a good idea) and found that the evidence of the life insurance beneficiaries required no corroboration at all. That was the end of it and the beneficiaries won on the battle of evidentiary principles.The decision in Brisco Estate stands as a warning of the risks to litigants in estate matters that their winning cases can be turned into losing cases on the unpredictable application of the technical rules of evidence.The beneficiaries were successful in this case but one suspects that if there had been any suspicion of credibility on their side, the trial judge and Court of Appeal could have equally applied the evidentiary rules against them and dismissed their case with costs.It’s confusing.

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