B.C. Estate Litigation: Hearing “Hearsay” Evidence
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
 (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
 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.
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