How to Use a Dead Person’s Evidence or Statements in Estate Litigation | Hearsay Evidence

When an estate litigation case goes to trial in BC, hearsay evidence of the deceased person will almost inevitably be addressed. The challenge in dealing with this type of evidence is that the person is no longer alive to testify about their intention with respect to their estate and assets.  So is hearsay evidence admissible in estate cases? Well, that depends!  Let’s look at some examples of when it can and can’t be used.

The Hearsay Evidence Rule and its Exceptions:

Let’s first define Hearsay Evidence.  Hearsay evidence is defined as an out-of-court statement relied upon for the truth of the statement. In law, this evidence is generally considered inadmissible because the witness who made the statement is not in court providing testimony, so the evidence cannot be tested through cross-examination. However, there are exceptions to this rule. While there are many exceptions to hearsay evidence generally, a common exception used in Estate Litigation is called the “Principled Exception”. Under this exception, the hearsay evidence may be admitted if it meets two criteria: 1) necessity; and 2) reliability. Otherwise known as the “Twin Criteria”. This principled approach is adopted by the Supreme Court of Canada and is set out in the case of R. v. Khelawon, 2006 SCC 57 (“Khelawon”) at para. 2:

“…When it is necessary to resort to evidence in this form, a hearsay statement may be admitted if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth. If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails. The trial judge acts as a gatekeeper in making this preliminary assessment of the “threshold reliability” of the hearsay statement and leaves the ultimate determination of its worth to the fact finder.”

It’s really important to know that if someone wants to use hearsay evidence in court, they have to prove that it’s necessary and reliable. They need to show that it’s more likely than not to be true.

Allowing Hearsay Evidence

The Key to Unlocking Admissibility: Necessity and Reliability

in order to allow hearsay evidence of a deceased person to trial, two things need to be addressed: Necessity and Reliability.

In the recent Estate Litigation case of Rawlins v. Rawlins, 2023 BCSC 466, the Honourable Mr. Justice Riley confirms in paragraph 96:

“…Necessity is clearly made out in a case such as this, where the declarants are deceased. With regard to the reliability criterion, the question is whether the impugned statements meet the standard of “threshold reliability”, on the basis that their contents are considered trustworthy “because of the way in which [they] came about”, or “if circumstances permit the ultimate trier of fact to sufficiently assess [their] worth”.

The Battle of the Out-of-Court Statements

Justice Riley, in citing Justice Dardi in the case of Anderson v. Anderson, 2010 BCSC 911, explains that in Estate Litigation cases, often the most controversial question will be whether the out-of-court statement in issue was made in the first place. The judge must decide on a balance of probabilities that the statement was, in fact, made.

In the case of R. v. Evans, [1993] 3 S.C.R. 653, Justice Sopinka described this exercise as “an inquiry into the “authenticity” of the out-of-court statement, requiring a consideration of the truthfulness and reliability of the witness testimony through which the impugned statement is adduced into evidence (Rawlins at para 97).

Section 62 of WESA: Shedding Light on Hearsay Evidence Admissibility

In Rawlins, Justice Riley explains that in cases where the trial judge must make a determination regarding the deceased will-maker’s “reasons” for limiting a child’s inheritance in the context of a will variation proceeding, the admissibility of hearsay evidence is dealt with under section 62 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”). Section 62 provides that:

(1) In a proceeding under section 60, the court may accept the evidence it considers proper, respecting the will-maker’s reasons, so far as may be determined,

(a) for making the gifts made in the will, or

(b) for not making adequate provision for the will-maker’s spouse or children,

including any written statement signed by the will-maker.

(2) In estimating the weight to be given to a statement referred to in subsection (1), the court must have regard to all the circumstances from which an inference may reasonably be drawn about the accuracy or otherwise of the statement.

In Rawlins, it appeared that section 62 would allow the out-of-court statement of the deceased as the deceased’s hearsay evidence for not providing more generously for one of her three children in her will. However, Justice Riley clarifies that to be admissible under s. 62, the statements must relate to the testator’s intentions for making or not making provision for a particular individual in the testator’s will. In this case, the plaintiff was trying to argue that he is entitled to a greater share of the estate residue than his siblings based on his contributions to the estate.

The State of Mind Exception to the Hearsay Rule

The court in Rawlins held that the evidence of the deceased was admissible under the “statement of intentions exception” to the hearsay rule, stating that there is an exception to the hearsay rule allowing admissions of a deceased’s statements as to his or her intention or state of mind at the time the statement was made, to prove the deceased’s intention or state of mind, but not for the underlying factual assertions (at para. 95). Once the court determines the evidence is admissible under the statement of intentions exception, it would them go on to consider the evidence under the principled exception described above.

Analyzing the Weight of Hearsay Evidence in Estate Litigation

As you can see, there are numerous ways to argue that hearsay evidence of a deceased person is admissible despite the general rule against this type of evidence. However, in many cases, the hearsay evidence may be admitted but given little weight by the trial judge. In circumstances where there is relevant documentary evidence, the hearsay evidence is self-serving, or it is inconsistent with the in-person evidence of credible witnesses, the judge will give less weight to the out-of-court statement of the deceased. Ultimately, hearsay evidence of a deceased is analyzed on a case-by-case basis, taking into consideration the context around the circumstances of the statement and the rest of the evidence in the case as a whole.

Call us at 604-974-9529 or contact our Estate Litigation lawyers for a consultation to learn more about the strengths or weaknesses of your estate case.