Miller v Miller ( 1987) 14 BCLR (2d) 42 at pa 451, and approved by other cases such as Friak v Pilon 2012 BCSC 528 state that claims against deceased persons must be approached by the courts ” with the most careful scrutiny and indeed at the outset with some suspicion”. This was most recently applied in Wharton v McMinigal Estate 2014 BCCA 434
Miller at page 451 states:
Despite the repeal, it seems reasonable that a court should require a high standard of proof from a person who claims he is owed a sum of money by way of a debt due him from a deceased individual. This is because the deceased cannot, of course, appear in court and present his or her side of the argument.
The only evidence that can be introduced in most instances is the evidence of the survivor. Support for the idea that a court must view this kind of evidence with care comes from a decision of Rae J. in Kong v. Kong, 14B.C.L.R. 357, [1979] 6 W.W.R. 673, 5 E.T.R. 67 (S.C.). He describes the requirement of adequate proof as a rule of practice which a court should follow as a consequence of the repeal of s. 11 of the Evidence Act. At pp. 361-62 His Lordship said this:
In the absence of the statutory provision, one must at least examine the evidence with the most careful scrutiny and indeed, at the outset, with some suspicion: see Re Garnett: Gandy v. Macaulay (1885), 31 Ch. D. 1 (C.A.). One should also give consideration to whether corroborative evidence of a material nature exists and, if it does not, then whether in the particular circumstances it is necessary in order to render the other evidence believable. Under the rule of practice referred to, it was not in variably necessary to have corroboration of the nature indicated before the evidence could be acted upon: Re Garnett, supra; and Re Hodgson; Beckett v. Ramsale (1885), 31 Ch. D. 177 (C.A.), as cited in Bayley v. Trusts & Guar. Co. Ltd., 66 O.L.R. 254, [1931] 1 D.L.R. 500 at 504, per Middleton J.A.
In light of the decisions above referred to and the provisions of s. 30 of the Interpretation Act, I hold that the repeal of s. 11 of the Evidence Act did not have the effect of reviving the former common law rule regarding corroboration in cases involving claims by or against a deceased person in respect of matters occurring before the death of the deceased.
37 Therefore, while corroboration is no longer necessary, it still seems to me the evidence of a claimant in these types of situations should be examined with “the most careful scrutiny and indeed at the outset with some suspicion”.
Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 45 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.
