Does Hearsay Evidence Work In Estate Litigation?

What Is Hearsay Evidence?

Hearsay evidence generally refers to an out-of-court statement offered in court to prove the truth of the matter asserted in the statement.

In Canada, the admissibility of hearsay evidence in estate claims can vary depending on the specific circumstances and the rules of evidence applied by the court.

Hearsay Evidence In Estate Matters

In the context of estate claims, such as will contest or disputes over the validity of a testamentary document, the courts generally apply the rules of evidence to ensure fair and reliable proceedings. Hearsay evidence is generally viewed with caution because it may lack the same level of reliability as firsthand or direct evidence.

However, there are certain exceptions and circumstances where a liberal approach is utilized with regard to the admissibility of hearsay evidence in estate claims. For example:

• Statements against interest: Hearsay evidence may be admissible if it involves statements made by a person that are against their own interest. This exception allows certain statements to be admitted when they would not normally be admissible.
• Statements made by a deceased person: In some cases, statements made by the deceased person themselves may be admissible as evidence. For instance, if a person’s statement is relevant to the issue at hand and the court finds it reliable, it may be considered admissible.
• Statements made in the ordinary course of business: Hearsay evidence can be admissible if it falls within the exception for statements made in the ordinary course of business. This exception applies to records or documents kept in the regular course of business and can include things like bank statements, invoices, or business records that are relevant to the estate claim.

It’s important to note that the admissibility of hearsay evidence in estate claims can be subject to judicial discretion and may vary depending on the specific circumstances of each case. The rules of evidence and their interpretation may also differ among different provinces and territories in Canada. Therefore, it is advisable to consult with a qualified estate lawyer who can provide specific guidance based on the jurisdiction and the particulars of your situation.

What Is The Law For Hearsay Evidence In Ontario Evidence Act?

Under the Ontario Evidence Act, hearsay evidence is generally inadmissible unless it falls within a recognized exception. In the case of R. v. Khan, the Supreme Court of Canada highlighted that a judge would first consider the relevance of hearsay evidence to the issue and determine whether any exclusionary rule of the law of evidence (if available in any legislation) is applicable before admitting hearsay statement into evidence.

Exceptions Under The Ontario Evidence Act For The Admissibility Of Hearsay Evidence

The Act sets out several exceptions to the hearsay rule, allowing for the admission of hearsay evidence in certain circumstances. Here are some key provisions related to hearsay evidence under the Ontario Evidence Act:

• According to section 19 of the Act, a statement made by a person who is unavailable to testify and that, at the time it was made, was against their interest, may be admissible as hearsay evidence.
• Section 35 stipulates about the statements in documents or records. Hearsay statements contained in documents or records that were made in the ordinary course of business and kept in the regular course of business may be admissible as evidence.
• Pursuant to Section 32 of the Act, the statements made by a deceased person may be admissible as hearsay evidence if they are relevant to a material issue in the proceeding, and there are reasonable grounds to believe that the statement is reliable.
• Section 31 of the Act talks about dying declarations.  Statements made by a person who believed they were in imminent peril of death, and who died as a result of the event or circumstances giving rise to that belief, may be admissible as hearsay evidence.
• Section 13 of the Act allows hearsay evidence in estate claims if there is further corroborating evidence to support the hearsay declaration. In other words, if the only supporting evidence is an oral hearsay statement, the claim will be disregarded.

It’s important to note that these exceptions are not exhaustive, and other recognized exceptions to the hearsay rule may also apply in specific situations. The court has discretionary power to admit or exclude hearsay evidence based on factors such as reliability, necessity, and the interests of justice.

Contact The Lawyers At Ayaz Mehdi Professional Corporation

If you require any assistance with your estate dispute including making of a will, estate claims by relatives or family members, or testamentary capacity issues; our lawyers can provide you with robust legal advice.

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