Can You Believe It? The Role Of Corroboration In Estates Litigation

The Ontario Court of Appeal recently admitted statements made by a deceased to family members prior to his death as evidence of his insurer's mistaken cancellation of one of the deceased's accidental death policies in Brisco Estate v. Canadian Premier Life Insurance Co., 2012 ONCA 854. In its decision, the Court clarified the scope of the corroboration requirement of section 13 of the Evidence Act as well as the role corroboration can play in admitting hearsay evidence.

Facts

Robert Brisco ("Brisco") died in a plane crash in 2004. Previously, Brisco had purchased two insurance policies through Canadian Premier Life Insurance Company ("Canadian Premier") in January 1998: an accidental death policy and a hospital benefits policy. Canadian Premier contended that Brisco had cancelled the accidental death policy in August 1998. Brisco's estate argued that Brisco had meant to cancel the hospital benefits policy, but that Canadian Premier had cancelled the accidental death policy by mistake. If the accidental death policy was in effect, Brisco's estate would be entitled to $1,000,000. Brisco had also held another $1,000,000 accidental death policy with a different insurer.

As evidence of the mistake, Brisco's brother (as estate trustee) and Brisco's three children each gave evidence that Brisco had made statements to them at various times subsequent to 1998 that indicated he believed he held two million-dollar policies. Although these statements were hearsay, the trial judge admitted the evidence under the "state of mind" exception. Canadian Premier appealed, claiming that Brisco's statements were inadmissible or, in any event, not corroborated pursuant to section 13 of the Evidence Act.

The Court of Appeal dismissed the appeal. Although the trial judge had erred in admitting the statements under the "state of mind" exception, the statements were admissible under the principled approach to hearsay. As well, the statements made by the deceased to his children did not require corroboration (as explained below) but in any event were sufficiently corroborated to meet the section 13 requirement.

Section 13 of the Evidence Act

Section 13 provides as follows:

In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless...