Motions and applications rely on affidavit evidence – written statements sworn under oath. This is in contrast to actions, where evidence is provided by live witnesses who are examined or cross-examined in court (this is what you see on TV dramas). Relying on affidavit evidence translates into less time spent in court – since the judge reviews the affidavits prior to the hearing, court time is used by the lawyers to make their submissions to the judge.
Because many estate matters, and nearly all non-contentious estate matters, are dealt with by way of application, it is important to know the rules of what should – and should not – be included in affidavits. The case of Gordon v Gordon et al., 2022 ONSC 550 provides a helpful refresher on the rules.
By way of background, the deceased died in 2018. The distribution of his estate was governed by his “Primary Will” and “Limited Will,” both executed in December 2014. In 2018, the estate trustees brought an application for a certificate of appointment limited to the assets referred to in the Primary Will (the “2018 Application”). After being declined twice, the estate trustees commenced a new application in 2021 seeking the rectification of the wills (the “2021 Application”).
In support of the 2021 Application, the estate trustees each swore supporting affidavits. They also relied on an affidavit sworn by the drafting solicitor in support of the 2018 Application.
Rule 39 of the Rules of Civil Procedure governs the evidence on motions and applications. In particular, r. 39.01(5) states: “An affidavit for use on an application may contain statements of the deponent’s information and belief with respect to facts that are not contentious, if the source of the information and the fact of the belief are specified in the affidavit.”
As a result, it has become common practice for affidavits to begin with a statement along the lines of “… I have personal knowledge of the matters deposed to in this affidavit. Where my knowledge is based on information or belief, I have stated the source of that knowledge and believe it to be true.” One of the estate trustee’s affidavits contained such a statement. Nevertheless, the court identified three paragraphs of concern:
- “I am advised by my lawyers that it is common estate planning practice to prepare multiple wills …”
- “I am advised by my lawyers that this is a typographical error capable of rectification.”
- “I am advised by my lawyers that the estate administration tax payable on the Limited Property Estate would amount to $471,075 …”
The Court held that those paragraphs should be struck out.
First, the estate trustee failed to identify, by name, the source of the information upon which she was relying. Saying “my lawyers” is insufficiently specific.
Second, the estate trustee provided no evidence as to why she (and by extension, the court) should trust the information provided by “my lawyers.” The Court held that the estate trustee should have, at a minimum, set out the background and experience of the unnamed individuals which justified her reliance on them as the source of her beliefs about estate law.
Third, the last paragraph was struck out because it was a conclusion, not evidence. In general, evidence consists of facts and first-hand experiences. While a narrow exception is made for experts, it is the role of the courts, not witnesses, to draw conclusions.
Next, the Court turned its attention to the drafting solicitor’s affidavit. Because it had been filed in support of the 2018 Application, it bore a different title of proceeding and court file number. While this should have excluded it from evidence in the 2021 Application, the Court exercised its discretion pursuant to r. 2.03 to dispense with compliance of r. 4.02(1) and granted the parties leave to rely on the lawyer’s affidavit from the 2018 Application.
Once these evidentiary issues were dealt with, the Court granted the estate trustees’ request to rectify the wills.
This case serves as a good reminder that, in an affidavit: (i) identify the source of information by name; (ii) set out the reasons why the other person is a trustworthy source of information; and (iii) save legal arguments and conclusions for the factum.