Hearsay evidence is very common in Vancouver estate disputes and generally speaking is allowed by the courts subject to a few principled rules so long as it is not relied upon for “the truth of its contents”.
Hearsay evidence was discussed in Horton v Bruce 2017 BCSC 712 which adopted the principled approach set out at para. 30 in Harshenin v. Khadikin, 2015 BCSC 1213 (B.C. S.C.), citing R. v. P. (R.) (1990), 58 C.C.C. (3d) 334 (Ont. H.C.).
Justice Dardi stated that, on the “principled approach” to hearsay exception, hearsay evidence is presumably inadmissible when relied upon for the truth of its contents, however, if the statement is not proffered for its truth but rather offered pursuant to a well-established exception such as the deceased person’s state of mind, the hearsay evidence is then admissible.
4 rules of hearsay evidence in Vancouver estate disputes:
[33] The onus is on the party tendering the hearsay evidence to establish the necessity and reliability on a balance of probabilities. The court in this case must assess both the threshold reliability of the statement at issue and the statement’s ultimate reliability having regard to the entirety of the evidence…
[34] In this case, because the declarant is deceased, necessity is clearly established. That leaves for determination the issue of the reliability of the various statements attributed to the Deceased.
[35] A court is required to assess the reliability of a statement sought to be adduced by way of hearsay evidence by examining the circumstances under which that statement was made. A circumstantial guarantee of trustworthiness is established if the statement was made in circumstances which “substantially negate” the possibility that the declarant was untruthful or mistaken…
[36] As a preliminary threshold issue, the court must first find on a balance of probabilities that the statement was made by the Deceased before it goes on to determine the treatment and weight of such evidence: Creutz v. Estate of Kristian Winther, 2007 BCSC 1463 at para. 99. In essence, this assessment turns on the credibility of the various witnesses…
