You Can’t Just Take Alicent Hightower’s Word For It: Corroborating Evidence In Estate Litigation

 

If you’ve seen the final episodes of House of the Dragon, then you know that the King, on his deathbed, made some vague and garbled statements about who should inherit the throne. The Queen, the sole witness of those statements, interpreted them to mean that her son should inherit, rather than her stepdaughter. When the Queen communicated this exchange to the powerbrokers of the Kingdom, it was greeted with skepticism by some. 

 

I haven’t been able to get this out of my head for the last month, because of the evidentiary issues that frequently come up in estate litigation. Under Ontario’s Evidence Act, when an individual makes a claim against an estate, their claim must be supported by independent, corroborating evidence. It’s not enough to simply say, “The Queen told me so.”

 

This was addressed a few months ago by the Superior Court in Ottawa (McKenzie v Hill, 2022 ONSC 4881), when Justice Williams assessed the affidavit evidence of an applicant looking to validate a handwritten note of the deceased as a testamentary document. The applicant’s affidavit evidence in support of his claim was to the effect that the deceased had “told him so” (I’m paraphrasing). The applicant also submitted affidavit evidence from his daughter-in-law, similarly supporting his claim.

 

The Court was not satisfied with either affidavit. Justice Williams found that she could not accept the daughter-in-law’s evidence as independent of the applicant’s evidence, as it was mainly a repetition of the applicant’s evidence and could therefore suffer from the same flaws. On the facts, the Court was not satisfied that the deceased’s handwritten note met the requirements of a valid testamentary document.

 

 

Filing repetitive affidavits from different individuals doesn’t meet the requirement for independent, corroborating evidence. I’ve seen affidavits that are identical except for the name under the signature line, and it just won’t cut it. (The current record is four identical affidavits.)

 

When the Court is presented with two opposing sets of facts, one that is uncorroborated and one that is supported by independent or documentary corroboration, the Court is likely to favour the latter, because saying the King “told you so” on his deathbed is just downright suspicious.