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Estates - Corroboration [EA s.13 (Ont)]

. Bradshaw v. Hougassian

In Bradshaw v. Hougassian (Ont CA, 2024) the Ontario Court of Appeal considered the S.13 Evidence Act provision that requires material evidentiary corroboration in estate litigation:
[25] The appellants’ second ground of appeal is that the trial judge erred by finding that the corroboration requirement in s. 13 of the Evidence Act, R.S.O. 1990, c. E.23, applied to Jack’s evidence. Section 13 provides:
13. In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.
[26] Relying on this court’s decision in Brisco Estate v. Canadian Premier Life Insurance Company (2012), 2012 ONCA 854 (CanLII), 113 O.R. (3d) 161 (C.A.), the appellants argue that because Jack was not an heir under Violet’s will, and was being sued on the basis that he controlled the corporation that was the disputed property’s legal owner, rather than in his capacity as one of the “heirs, next of kin, executors, administrators or assigns” of his late mother, s. 13 had no application to him.

[27] This argument is based on a misreading of s. 13, which applies to actions by or against persons who fall into the listed categories. While it is true that Jack was not being sued in his capacity as a person listed in s. 13, his sister was suing him in her capacity as the executor of Violet’s estate. This made Jack “an opposite or interested party” to whom the s. 13 corroboration requirement applied.

[28] In contrast, Brisco Estate involved litigation between the children of the deceased and an insurance company, in which the children were asserting contractual rights under the insurance policy. Although they were also the deceased’s heirs, they were not suing the insurance company in this capacity, nor was the defendant insurer a person listed in s. 13 of the Evidence Act. In these circumstances, s. 13 had no application.

[29] The appellants argue further that even if the s. 13 corroboration requirement did apply to Jack, the trial judge erred by not treating the evidence that Violet had not listed the property among her assets when she filed for bankruptcy in 2006 as corroborative of Jack’s evidence that the $10,000 she contributed to the house down payment was a loan.

[30] In Brisco Estate, at para. 65, this court adopted the observations of Watt J. (as he then was) in Sands Estate v. Sonnwald, [1986] O.J. No. 478 (H.C.), where he held that "corroboration should be such as to enhance the probability of truth of the suspect witness' evidence upon a substantive part of the case raised by the pleadings".

[31] I do not find it necessary to decide whether the evidence of Violet’s 2006 bankruptcy filings could properly be viewed as corroborating Jack’s evidence that her 1980 contribution to the purchase price was a loan. I come to this conclusion because the trial judge ultimately did not decide this case by applying the s. 13 Evidence Act corroboration requirement to Jack’s evidence.

[32] Section 13 bars a court from ruling in favour of an “opposite or interested party” based on that party’s uncorroborated evidence “in respect of any matter occurring before the death of the deceased person”. However, the trial judge’s reasons make it clear that he did not accept Jack’s evidence that his mother had loaned him $10,000 in 1980, not merely because it was uncorroborated, but because he found it implausible that Violet would have loaned Jack money when he already had enough to cover the down payment, and she needed the money for herself. In the passage from his reasons quoted above, the trial judge rejected Jack’s explanation for the loan as “not credible or plausible”, in view of Violet’s personal circumstances at the time.

[33] In short, this was not a situation where the trial judge would have found in the appellants’ favour but for the corroboration requirement in s. 13 of the Evidence Act. In this context, even if the trial judge should have treated the bankruptcy evidence as potentially corroborative of Jack’s testimony, his failure to do so had no discernible impact on the result.
. Van Decker Estate v. Van Decker

In Van Decker Estate v. Van Decker (Ont CA, 2022) the Court of Appeal cited a provision of the Ontario Evidence Act [s.13] that required corroboration of evidence in estate litigation:
[2] The appellants refused to vacate the Property, and, despite repeated requests from the Estate Trustee, failed to provide any corroborating evidence of their alleged interest in the Property, as required by s. 13 of the Evidence Act, R.S.O. 1990, c. E. 23. As a result, the Estate Trustee brought a motion for directions, leading to the order appealed from.
. James v. Chedli

In James v. Chedli (Ont CA, 2021) the Court of Appeal considered s.13 of the Ontario Evidence Act, that required evidentiary corroboration before judgment on a party's estate:
[3] The issue on the respondents’ summary judgment motion was whether those notes had become unenforceable, either because they were statute-barred, or because they had been materially altered without the assent of the borrowers, rendering them void under the Bills of Exchange Act, R.S.C. 1985, c. B-4, s. 144(1). Because Dennis Chedli had passed away and the action is against his estate, s. 13 of the Evidence Act, R.S.O. 1990, c. E.23, requires that the appellant’s evidence that Dennis Chedli had assented to the alteration of the notes be corroborated by some other material evidence.

....

[43] In order to determine whether Dennis Chedli had assented to the alterations to the first note, including its conversion from a term note to a demand note in the letter of November 19, 2008, the motion judge had to apply s. 13 of the Evidence Act, which provides:
13. In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.



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