Hearsay Evidence in Claims by and Against an Estate
Litigation concerning an estate almost invariably involves one or more of the parties attempting to present evidence of statements made by the deceased. The admissibility of hearsay evidence has recently been considered by the B.C. Supreme Court in an action concerning a claim by and against a deceased’s estate over the ownership of certain valuable coins. The application of the criteria set by the Supreme Court of Canada for admissibility of hearsay evidence of necessity and reliability is much more complicated than this test suggests and has practical implications for litigators as well as solicitors taking Will instructions.
The decision of Mr. Justice Butler on August 21, in Manning v. Algard Estate 2008 BCSC 1129 deals with a situation where the deceased, Mr. Algard, lost Swedish coins worth thousands of dollars. The coins were purchased years after they were lost by the Plaintiff’s mother at a garage sale for $5.00 and subsequently passed to the Plaintiff on her mother’s death. When he discovered his loss, Mr. Algard made a police report alleging the coins must have been stolen and a few weeks later gave a further, detailed statement to the police in which he identified four missing coins. Ten years later after he had been advised the coins were seized by the police from the Plaintiff when she made inquiries about the coins’ value, Mr. Algard provided the police with another statement in which he said there were five missing coins. Mr. Algard died shortly after the coins were returned to him and this action was commenced to determine the entitlement to the coins. The admissibility of the Deceased’s statements to the police were in issue.
Justice Butler referred to the test for admissibility of hearsay evidence in the SCC decision of R. v. Khelawon 2006 SCC 57. The onus is on the party attempting to have the hearsay evidence admitted to establish on a balance of probabilities that the evidence is necessary and reliable. Necessity is established by the death of Mr. Algard; there is no other way of obtaining evidence regarding Mr. Algard’s ownership and loss of the coins.
As for the issue of reliability, Justice Butler also considered the BCCA decision in R. v. Post 2007 BCCA 123, wherein Chief Justice Finch noted that the overarching principle is trial fairness. Threshold reliability can be met in two ways: first, the circumstances in which the statement was made may provide sufficient comfort as to its truth and accuracy; second, the statement’s truth and accuracy may be tested by adequate substitutes to an oath and cross-examination at trial.
Some of the factors to determine admissibility include whether the declarant had a motive to lie, whether the statement was adduced through leading questions, whether it was made under oath or after a warning of the importance to tell the truth, whether the declarant was aware of the solemnity of the occasion and the importance of accuracy, whether the declarant suffered any mental impairment, whether it was recorded, whether the declarant was cross-examined, whether the declarant had time to reflect and tailor the statement and whether the statement was taken by an independent person or a party or an agent of a party.
To achieve trial fairness, hearsay evidence will be considered where the prejudice not to admit it is more severe that the prejudice to the other party in admitting it. However, the statements must still have sufficient threshold reliability to allow admission. Even if the statements are admitted, the parties can still argue that little or no weight should be given to the statements.
In Manning the Court held that Mr. Algard’s initial police report and his second recorded statement to the police a month later, although not given under oath, were such that he would have understood the solemnity of the occasion and the importance to tell the truth. Despite the fact there were some discrepancies between the initial report and the statement made a month later, the judge admitted this statement. The judge also determined that the police file containing notations of the investigating officers corroborated this statement.
The Deceased’s second statement ten years after the event was not admitted as the judge held that the fact it was prepared by Mr. Algard’s counsel after Mr. Algard was advised that five coins were recovered, was not under oath, was not recorded, it was not clear what he used to refresh his memory and there was no questioning by an independent person as there was in the earlier statement.
In the result, the Court decided Mr. Algard’s estate had established the right to recover the four coins he initially said were stolen although the Court determined the coins were merely lost, but there was no admissible evidence to prove he owned the fifth coin, so it was returned to the Plaintiff.
Solicitors taking Will instructions should be careful to consider whether a client’s estate involves claims against or by it and take steps to preserve evidence. In appropriate circumstances (such as where the client is ill or very elderly) the client’s litigation counsel should consider having the client make a statement under oath or, preferably, by a video deposition. These steps will assist the client’s estate in dealing with such claims.
