Hearsay Evidence in Estate Litigation
The law of evidence in British Columbia is nuanced and complex with varied exceptions to the myriad of rules. A general rule that has been that hearsay evidence is not admissible. Hearsay evidence is statements made outside of court which are presented in court for the trust of that statement. In Estate Litigation, questions regarding the admissibility of hearsay evidence frequently arise when Courts are forced to determine the intentions or the veracity of statements allegedly made by the Deceased.
In the recent decision of Horton v. Bruce, 2017 BCSC 712, Madam Justice Maisonville found that statements allegedly made by the Deceased to the Plaintiff were admissible “on the basis of the principled approach to the hearsay rule exceptions and the well-recognized exception for the deceased’s state of mind.” Madame Justice Maisonville then cited a decision of Justice Dardi which considered this issue:
 Justice Dardi discussed the principled approach to hearsay evidence at para. 30 in Harshenin v. Khadikin, 2015 BCSC 1213 (CanLII), citing R. v. P (R.) (1990), 1990 CanLII 6921 (ON SC), 58 C.C.C. (3d) 334 (Ont. H.C.J.). She stated that, on the “principled approach” to hearsay exception, hearsay evidence is presumably inadmissible when relied upon for the truth of its contents, however, if the statement is not proffered for its truth but rather offered pursuant to a well-established exception such as the deceased person’s state of mind, the hearsay evidence is then admissible.
 Justice Dardi also held:
 The onus is on the party tendering the hearsay evidence to establish the necessity and reliability on a balance of probabilities. The court in this case must assess both the threshold reliability of the statement at issue and the statement’s ultimate reliability having regard to the entirety of the evidence …
 In this case, because the declarant is deceased, necessity is clearly established. That leaves for determination the issue of the reliability of the various statements attributed to the Deceased.
 A court is required to assess the reliability of a statement sought to be adduced by way of hearsay evidence by examining the circumstances under which that statement was made. A circumstantial guarantee of trustworthiness is established if the statement was made in circumstances which “substantially negate” the possibility that the declarant was untruthful or mistaken …
 As a preliminary threshold issue, the court must first find on a balance of probabilities that the statement was made by the Deceased before it goes on to determine the treatment and weight of such evidence: Creutz v. Estate of Kristian Winther, 2007 BCSC 1463 (CanLII) at para. 99. In essence, this assessment turns on the credibility of the various witnesses …
If you are involved in an estate dispute and wish to challenge the validity of a will or seek a variation of its terms, contact the Kushner Law Group to schedule a consultation.