The general principle against hearsay evidence is that oral and written statements made by persons outside the Court are inadmissible
It is often the case in estate litigation cases that the key evidence led at trial through witnesses are statements from the deceased person. These statements would be categorized as hearsay, the defining features which are the fact that the statement is adduced to prove the truth of its contents and the absence of a contemporaneous opportunity to cross-examine the declarant. Many of the statements made by witnesses in these cases are not tendered for the truth of their contents but for the fact that the witness had a belief as to the deceased’s statement and thus the evidence does not need to be examined. However, in cases where there needs to be an examination of the evidence, the principled approach to the hearsay rule is applied.
The general principle against hearsay evidence is that oral and written statements made by persons outside the Court are inadmissible. Traditionally, many exceptions were present in regard to hearsay evidence including declarations made in the course of a business duty, statements in public document, statements indicating bodily or physical state, statements indicating an existing mental or emotional condition, and state of mind or intention. However, the Supreme Court through the cases of R. v. Smith (1992) SCR 915 and R. v. Khan (1990) 2 SCR 531 have now developed a more flexible stance in relation to the hearsay rule, known as the “principled approach”.
The two criteria under this approach are necessity and reliability. Necessity is generally established if the person is deceased and the evidence is relevant to the matters in issue. Reliability concerns the circumstances in which the statement was made. The court will also apply a threshold reliability test developed in R. v. Khelawon 2006 SCC 57 requiring indicators of reliability to be present. A number of factors can be considered when assessing the threshold reliability of a hearsay statement as summarized in Gutierrez v. Gutierrez 2015 BCSC 185. These include the presence or absence of a motive to lie, independent corroborative evidence that “goes to the trustworthiness of the statement”, timing of the statement relevant to the event, contemporaneity, the declarant’s mental capacity at the time of making the statement, solemnity of the occasion and 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”.
In the estate case of Holst v. Holst 2001 BCSC 1124, the Court noted that all of the circumstances surrounding the time when the statement was made should be considered. This includes the timing of the statements, the demeanor of the declarant when the statements were made, the intelligence and understanding of the declarant, and the absence of any reason to expect fabrication in the statements. In Bellinger v. Nuytten Estate 2002 BCSC 571, all parties offered hearsay evidence in support of their claims and in reasons for judgement, it was noted that the necessity requirement is usually established where the declarant is dead and direct evidence is not available. On reliability, the ultimate reliability of the evidence and the weight to be given to it are to be determined by the Court. A significant issue that arises in estate litigation cases is that many of the hearsay statements come from the interested parties. In Stephens v Austin 2003 BCSC 341, the Court dealt with this problem by stating that in such situations the requirement of reliability is a concern but the fact that the witness testifying to the hearsay has an interest in the outcome of the case may be adequately dealt when ascertaining the weight to be attributed to the statements.
The admissibility of hearsay evidence is therefore important in estate litigation cases, especially in will variation claims, as this evidence often speaks to the pivotal issue of the interpretation of the deceased’s will.
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