Trevor Todd and Jackson Todd have over 65 years of combined experience in handling Wills Variation Claims
In Enes v Dancey 2026 BCSC 1644 the court discussed the evidence of a sister’s claim under the wills variation act where the defendant brother who received %100 of the $1.8 million dollar estate as to whether she was estranged from her father and thus disinherited for cause.
The Court awarded the plaintiff sister %55 of the estate and found inter alai that any estrangement was the fault of the deceased and not the sister.
The court also held that where the evidence of the sister and brother contradicted each other, he preferred to believe the evidence of the sister and utilized the following legal tests in assessing the reliability of a witnesses evidence:
Credibility and Reliability
Credibility and reliability are not the same. Credibility is an assessment of the
truthfulness and sincerity of a witness whereas reliability assesses the ability of the
witness to accurately observe, recall, and recount the events in question: R. v.
Plehanov, 2019 BCCA 462 at para. 51, leave to appeal to SCC ref’d, [2020]
S.C.C.A. No. 489.
In assessing the evidence of each party and the witnesses called
on their behalf, I have considered the various factors that comprise the assessment
of the trustworthiness of a witness’s testimony identified in the oft-cited decision of
Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff’d 2012 BCCA 296. These
factors include:
a)the ability of a witness to observe events;
b) the firmness of a witness’s memory;
c) the ability of a witness to put aside their interests in the outcome of the
litigation and the temptation to modify their recollection
d) whether the evidence of a witness is consistent with other independent
evidence;
e) whether the witness changes their evidence during direct and crossexamination;
f) whether the evidence of a witness seems unlikely, unreasonable, or
implausible;
g)whether the witness has a motive to lie; and
h) the demeanor of the witness while testifying.
Specifically with respect to my assessment of the extent that the witnesses
were being truthful in their testimony, I have also considered the following additional
factors identified by Justice Mayer, as he then was, in Youyi Group Holdings
(Canada) Ltd. v. Brentwood Lanes Canada Ltd., 2019 BCSC 739 at para. 92 that
may negatively impact credibility. These include
- a) inconsistencies in the evidence of a witness either between direct and
cross-examination or with their previous discovery evidence;
b) whether the witness has lied under oath;
c) collusion between witnesses to align their evidence;
d) the failure to produce documents that could be expected to corroborate
evidence;
f) giving evidence that defies logic or common sense;
g) giving evidence in an evasive, long-winded and argumentative fashion.
Consistent with Faryna v. Chorny, [1952] 2 D.L.R. 354, 1951 CanLII 252
(B.C.C.A.), my consideration of the above factors is subject to an overall
assessment as to the extent that a particular witness’s evidence is consistent with
the evidence as a whole.
