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Watson v. Herom – The Importance of Independent Witnesses in Will Challenges

In many ways, Watson v. Herom is a typical will challenge case. The litigants are sisters and the plaintiff was challenging their stepfather’s last will and testament, which excluded her and left the entirety of his estate to the defendant.

The plaintiff argued that the Deceased’s earlier will, which left everything to her and her sister equally reflected the Deceased’s true intentions and that the more recent last will and testament was prepared and executed while the Deceased lacked testamentary capacity.

The defendant brought a motion for summary judgment arguing that the plaintiff’s claim did not raise a genuine issue requiring a trial.

The plaintiff conceded that she had put her best foot forward and that she had presented all the evidence that she had been able to obtain. The problem was that other than her own recitation of events, there was no independent or objective evidence to support the plaintiff’s case.

In contrast, the defendant procured evidence from two independent witnesses who both testified that the Deceased was capable when he gave instructions for and executed the will.

Weighing the evidence as permitted under R. 20.04(2.1), Chozik J. found that the plaintiff’s evidence was outweighed by the evidence from the defence and that the plaintiff’s evidence was not persuasive enough to give rise to a genuine issue requiring a trial of the action. Further, “without corroboration or some independent confirmation, Leslie’s [the plaintiff] evidence is not sufficiently credible”.

Although not directly cited, Chozik J.’s rationale effectively mirrors section 13 of the Evidence Act, which provides that:

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 such evidence is corroborated by some other material evidence.

The case law explains that section 13 is intended to address the obvious disadvantage faced by the dead – they cannot tell their side of the story or respond to the living’s version of events.1

Justice Chozik’s decision in Watson v. Herom and section 13 of the Evidence Act make it absolutely clear that a will challenge will not succeed based on personal testimony of an interested party alone. To successfully set aside a will, the challenger must procure and present corroborating evidence to support the will challenge. Without it, the will challenge is doomed to fail.

  1.   Burns Estate v. Mellon, 2000 CarswellOnt 1990 (ONCA) at para. 5

The author of this blog is David Wagner. David is a partner at Wagner Sidlofsky LLP.

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This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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