Considering Credibility in Estate Litigation
Finding Credibility in B.C. Estate Litigation
Estate litigation is an area of law where issues of credibility can be central to the case. When the dispute revolves around the wishes of a deceased person or involves actions or discussions that occurred before the death, the only person who knows the truth is not around to weigh in.
The British Columbia Court of Appeal recently dismissed an appeal where the appellant’s lawyer argued that the Trial Judge erred in making findings of credibility.
The case, Franklin v. Cooper, 2016 BCCA 447, was a dispute between two sisters as to whether there was an agreement that one sister became a joint-tenant on a piece of property by way of an oral agreement in 1989. The Court found there was no agreement and as such the appellant was found to hold title on behalf of the Estate.
The Court made the following comments with respect to credibility:
 The judge recognized, in the passage that I have already quoted, that this was a case that turned on credibility. She took pains to set out contradictions in the evidence, and to explain why, despite certain contradictions, she preferred the evidence of Ms. Franklin to that of Ms. Cooper. The trial judge referred to most, if not all, of the evidence referred to in the appellant’s submissions, and explained why she did not come to the conclusions that the appellant urges upon us.
 Particularly in divisive litigation between members of a family, differing accounts of events are common. It is not unusual for the testimony of witnesses at trial to differ, in some details, from their evidence at discovery. It is also not unusual for there to be minor internal inconsistencies in an individual’s evidence. In this case, the judge noted the various inconsistencies, and provided reasons why she considered some to be of importance, and others to be of no moment.
 The contention that there are “badges” of credibility is, in my view, overstated. It is true that all judges will look to certain features of the evidence in weighing it. They will consider, for instance, the independence of a witness – the question of whether they have an interest in the litigation, or lack any motive to be partial. They will consider inconsistencies in the evidence of a witness, and inconsistencies between the evidence of one witness and another. They will consider the opportunity that a witness had to observe the events that they describe, and the extent to which they are able to recall the events in general and in detail. I do not disagree with Mr. Lenaghan’s observations, then, that various features of the evidence should be considered by a judge in assessing credibility. While not a term of art, I do not take issue with his labelling of the positive attributes of evidence as being “badges of credibility”.
The Court found that the trial Judge did not make an error and dismissed the appeal.
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