In many estate litigation cases, the court may benefit from evidence of the intentions of the deceased. For example, whether an asset transferred by the deceased was intended to be gift or is held in resulting trust depends upon the intention of the deceased. As the deceased person cannot give evidence, the court is often asked to rely upon out-of-court statements of the deceased to other persons – hearsay evidence. The court is asked to consider the hearsay statements for the truth of their contents, despite the fact that the person making the statement is deceased and unavailable for clarification, expansion or cross-examination.

If an exception to hearsay doesn’t apply, then the court must consider whether a statement should be admitted under the principled approach to hearsay:

• The hearsay rule provides that out-of-court statements are presumptively inadmissible to prove the truth of what was said, subject to traditional exceptions and the principled exception.
• The party seeking to lead hearsay evidence must prove necessity and reliability.
• Necessity is relatively easy to establish in this type of case – the person making the statement has died and cannot give evidence, and so it is necessary to introduce the evidence through hearsay;
• Turning to reliability, the statement must meet the requirement of threshold reliability (whether the evidence is admissible) and ultimate reliability (the degree to which the hearsay evidence is accepted or relied upon).
• A relevant factor is the presence of supporting or contradicting evidence.
• With respect to threshold reliability:
  • First, procedural reliability is established where there is a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the statement because adequate procedural safeguards were present at the time it was made. For example, was the statement made under oath?
  • Second, substantive reliability arises from the circumstances in which the statement came about or was made. It may be established where there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy, or the statement was made in circumstances where cross-examination would add little or be unlikely to change it.

In the estate context, the approach is often to first determine whether a hearsay statement was even made. Once satisfied the statement was made, if the party giving evidence that the statement was made (i.e. to them) is a party interested in the outcome (i.e. the statement helps their position), then this is dealt with by determining the weight to be attributed to any particular statement. The weight to be given may turn on the credibility of the witness.

In Manhas v. Manhas 2024 BCSC 52, the deceased had three children. Two of them were equal beneficiaries of his estate. Approximately five months before his death, the deceased sold his home, and transferred the proceeds of sale to a bank account held jointly with one of his children. This transfer left his estate with virtually nothing. The issue was whether the transfer of sale proceeds into the joint account constituted a gift to the child who was a joint owner.

The donee testified that her father told her that he wanted her to have the sales proceeds from the house – the hearsay statements. The Court admitted the hearsay evidence. The done was a credibility witness, and the statements were consistent with his conduct (other evidence). This, and other evidence, established that the father intended to gift the proceeds of sale to his daughter.