Allowing “Hearsay” Evidence in B.C. Wills Variation Court Cases

When a written will doesn’t cover everything

It is well known that hearsay evidence is generally not admissible in Court, aside from a few key exceptions. However in a wills variation claim in B.C., the Wills, Estates and Succession Act (“WESA”) specifically allows  the Court to relax the rules of evidence. Section 62 provides that:

 When hearsay evidence is admissible in Court

[62]  (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.

A written  statement signed by the testator is not the only way

This is similar to the provision that was found in the old Wills Variation Act. The application of this principle was clearly explained by the Supreme Court of British Columbia in McLean v. Leffler et al, 2007 BCSC 154

            [41]          As I read s. 5 of the Wills Variation Act (formerly s. 2(4)), a “written  statement signed by the testator” is not the only way that a testator’s reasons for a  disposition may be proved, although it is arguably the most reliable way of proving the testator’s intentions.  I think this is made plain by the words “so far as ascertainable” and  “including”, used in s. 5(1).  The statute empowers the court to accept and act upon   hearsay evidence of a testator’s intentions, and I can see no reason why evidence could not be given of a testator’s oral statement of his reasons for dispositions made or not made in his Will.  Such evidence has been admitted in many cases in this court.

Related Information:

• The Five W’s of Wills Variation in BC
• 4 Things to Know About Challenging a Will in Vancouver
• Homosexuality Not a Factor for Disinheriting in BC
• Equality & Law in BC Wills Variation
• BC Wills Variation – Spouses in Different Houses

When to Contact Estate Litigation & Family Law Lawyers

If you are a spouse or a child of a recently deceased person and are considering challenging a will, contact the Kushner Law Group at 604-629-0432 or contact us online to schedule a consultation.