Estates & Wills & Trusts

Corroboration needed when making claim on estate: Smith

By Jennifer Brown, AdvocateDaily.com Senior Editor

A recent case reinforces the fact that hearsay statements are inadmissible in court when it comes to making a claim on an estate, says Toronto estate litigator David M. Smith, who represented a man who was granted a motion for summary judgment to dismiss a challenge that he was unjustly enriched.

“The big takeaway for estate lawyers is s. 13 of the Evidence Act that says you must have corroboration — you can’t rely on your own evidence when claiming against an estate or making a claim on behalf of an estate,” says Smith, a partner with Hull & Hull LLP.

In the case, the defendant brought the motion seeking a dismissal of a claim by his mother’s estate, alleging he failed to advance money owed to his late mother during her lifetime, in contravention of the terms of his late father’s will. The estate claimed the man was unjustly enriched and that he failed to make adequate provision for his mother or otherwise neglected to ensure her financial well-being. The estate sought general damages of $750,000 and punitive damages of $250,000.

Smith says the case provides for a useful discussion about the admissibility of evidence in a disputed estate scenario.

“Evidence often comes from parties who have an axe to grind,” Smith tells AdvocateDaily.com. “The court says it won’t consider such evidence admissible because it is considered to be inherently unreliable.”

Smith’s client was a farmer whose father left him his estate in 1984. The man also had three sisters who weren’t happy that their brother inherited two farms from their father’s estate.

“They were looking for payback from their mother’s estate,” says Smith. “There was a great deal of resentment and animosity.”

When the father died, he left the farms to his son and stipulated he had to give one-third of the crop value to his mother each year. The son farmed for a little while, but then sold one farm with the consent of his mother and rented out the other, giving his mother one-third of the rent instead of the crop revenues, he says.

“The will said he was allowed to make his own arrangement with his mother,” says Smith. “For close to 20 years, the mother accepted the cheques and cashed them, never complaining.”

The man’s sisters claimed their mother did not agree to the change in compensation.

But when the mother died, the three daughters were the sole beneficiaries of her estate. They were unhappy that the size of their mother’s estate was so small and tried to seek $1 million from their brother.

“They tried to say, ‘You owe mom a million bucks,’” says Smith, who calls it “a cynical attempt” to increase the size of their mother’s estate and, in their mind, equalize what their brother received.

“I think the court saw through that,” he says.

Smith cross-examined the three daughters and the husband of one who was appointed the executor of the mother’s will.

“What he said was it’s obvious she should have received much more money, which was maybe the case, but she never sued her son, and all of the evidence was hearsay. All of those people had an interest in the outcome,” he says.

The hearsay exception stipulates that evidence can be entered if it is necessary and reliable, Smith says.

“While it is necessary to get that evidence in because the mother is dead, none of it is reliable, and unless it’s reliable it wouldn’t be admissible at trial,” he says. “There was no corroboration — the court just accepted that hearsay evidence doesn’t qualify as corroboration.”

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