Some stuff happened, and now people are fighting about what exactly happened. To find out what happened, evidence is needed. In estate litigation, there are special principles and rules of evidence along with the usual ones to be considered. The recent case of Koutsovasilis v. Carreira, provides a useful summary of some of these.

The Facts

The case involved a dispute over ownership of a property between a woman by the name of Alexandra and the estate of her deceased daughter, known as Bessie. The central issue was who was the beneficial owner of the property, with both parties claiming ownership based on resulting trust. Bessie’s husband, Paul, is the estate trustee of her estate.

In 1994, Bessie and Alexandra jointly purchased a residential property as joint tenants. They were also co-mortgagors until the mortgage was discharged in 2003. Upon purchase, Bessie moved into the main floor of the property. Around two years later, Paul moved into the property and they eventually raised their three children on the property. At no time did Alexandra reside on the property.

After Bessie’s death, Alexandra claimed sole ownership of the property. Paul, in his capacity as estate trustee of Bessie’s estate, claimed that the estate was the sole owner of the property.

Analysis

Under section 13 of the Evidence Act, in order to succeed in an action by or against an estate, the claimant’s evidence must be corroborated by some other material evidence. To determine whether evidence is corroborated, the court will “look to see whether it fits in with other statements or circumstances relating to the particular matter; the better it fits in the more one is inclined to believe it.”[1]

Perhaps due to most of the material facts having taken place between 20 and 30 years ago, the evidence of both parties was heavily reliant on bald testimony and hearsay. Both parties relied on the testimonies and examinations of friends, family, and others in Alexandra and Bessie’s orbit between 1993 and 2003. As such, many of the court’s findings turned on findings of credibility. To be credible, a witness’ evidence must be consistent, logical, and plausible. The credibility and reliability of a witness’ evidence is affected by inconsistencies, including with prior statements, and by whether the witness has a motive to fabricate evidence.[2]

Alexandra produced very little evidence, and relied on the testimony of her son, Bessie’s brother, to corroborate her testimony surrounding the purchase of the property. However, Peter’s evidence mimicked his mother’s evidence to a degree that cast doubt on his independence. Other factors also raised concerns regarding the credibility, reliability, and plausibility of his evidence, and so it was given little weight. Alexandra’s evidence was also found not to be credible, reliable, or plausible.

Paul, for his part, was not present when the property was purchased. As such, much of his evidence surrounding the circumstances of the property purchase were based on his discussions with Bessie – in other words, they were hearsay. However, hearsay may be admitted into evidence if it falls within certain exceptions. Hearsay can be admitted if the trial judge determines that the criteria of necessity and reliability are established.[3]

In this case, necessity was established as Bessie was unavailable to testify. In order to prove the reliability of his hearsay, Paul relied on the evidence of Bessie’s friends and family. However, none of their testimony corroborated Paul’s testimony and his evidence was ultimately found to be inadmissible.

Conclusion

The case provides a useful overview of the rules of evidence. Frankly, the decision is worth a read in general, providing a deep dive into the concepts of resulting trusts, constructive trusts, and sectrion 26(1) of the Family Law Act.

[1] Koutsovasilis v. Carreira, 2024 ONSC 4736 at para 77.

[2] Ibid at para 79.

[3] Ibid at para 100.