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09 Aug Admissibility of Hearsay Evidence Contemplated in a Recent Wills Variation Decision

The admissibility of hearsay evidence, which is generally inadmissible, is important in any wills variation claim where evidence is produced to shed light on the testator’s intentions and reasoning for leaving their Estate to a certain beneficiary over others. A previous blog post (Hearsay Evidence in Will Variation Claims) outlined the general law on admissibility of hearsay evidence in wills variation actions. In the recent decision of Sharma v. Sharma Estate, 2016 BCSC 1397, Madam Justice Griffin’s discussion on hearsay evidence and its admissibility paints a cautious approach in giving significant weight to such evidence.

She notes at the outset that the parties considered hearsay evidence as largely admissible for the truth of its contents as long as relevant. Both parties also relied on the principled approach to the admission of hearsay evidence on the basis that the evidence of such nature is not only necessary as the person in question is deceased but is also reliable. The reliability of this evidence is premised on a number of factors from the case law and is summarized in Guiterrez v Guiterrez 2015 BCSC 185 as:

  • the presence or absence of a motive to lie;
  • independent corroborative evidence, timing of the statement relevant to the event;
  • the declarant’s mental capacity at the time of making the statement;
  • whether the declarant’s statement was made “in circumstances that could arguably be akin to the taking of an oath where the importance of telling the truth and the consequences of making a false statement were properly emphasized”.

 

Madam Justice Griffin concludes the following on admissibility of such evidence when it came to evidence given by certain witnesses on the reasoning found in her Will:

[32] I have been very cautious about giving much weight to the evidence of the parties or of witnesses closely allied with the parties, such as family or friends, as to what the Testatrix told them about the reasons for her dispositions in the 2007 Will. This is because:

a) Each of the parties was self-serving in their recollections as to what the Testatrix told them.

b) The Testatrix may have had reasons to tell different things to her children, or their friends, or other family members, seeking to align with or against one or the other for any variety of possible reasons, including emotional reasons that had little to do with the truth. The Testatrix may also have been mistaken about her understanding of the facts.

c) There is better evidence of the Testatrix’s intentions when she wrote her 2007 Will than evidence of the people now making competing claims under it and their allies. The best evidence is the language of the 2007 Will and the evidence of the Testatrix’s instructions to the lawyer who prepared the 2007 Will, Mr. Jussa, who testified at trial. This evidence is internally consistent and the solemnity of the occasion and independent and neutral role of the lawyer are circumstances which provide more objective indicators of reliability.

Ultimately, Mussio Goodman was successful in proving that the reasons for disinheritance were not supported by evidence and that the Will should adequately provide for the disinherited children.