Article2026 | 10 | 05

When the Witness Has Died

Using a Deceased Person's Statements in Court

This article was co-authored by Apara Grace and Simon Garfinkel.

When the only person who can confirm a promise has died, a court will not hear what they said unless it is shown to be both necessary and reliable.

Why the hearsay rule applies

Hearsay is an out-of-court statement offered to prove that what it says is true. When a witness testifies that the deceased told them about an agreement, and that testimony is offered to prove the agreement existed, it is hearsay.

The law treats hearsay with suspicion because the person who made the statement cannot be cross-examined. The court has no way to test whether they were honest, whether they remembered accurately, or whether the witness repeating the statement has it right. Hearsay is therefore presumptively inadmissible. The death of the person who made the statement does not change that starting point. There is no general exception for statements of a deceased person.

How the evidence can still get in

The Supreme Court of Canada set out the framework in R v Mapara, 2005 SCC 23. Hearsay is presumptively inadmissible unless it falls within a recognized exception. The traditional exceptions remain in place, but in rare cases evidence that fits one may still be excluded if it lacks the necessary indicia of necessity and reliability. Hearsay that fits no exception may still be admitted if necessity and reliability are established on a voir dire, a hearing within the trial to decide admissibility.

That last route, the principled exception, is usually where a deceased person’s statements are argued.

Necessity is rarely the obstacle. The person who made the statement has died and cannot testify, so the evidence cannot be obtained any other way.

Reliability is where these cases are won or lost. The two requirements work together, but not symmetrically. A court may relax necessity where reliability is very strong. The reverse is not true. However obvious the necessity, the statement must still meet a high threshold of reliability. With a deceased declarant, that means circumstances that give the statement real guarantees of trustworthiness, or some adequate substitute for cross-examination.

A note for Manitoba

Some provinces add a statutory hurdle. Section 13 of Ontario’s Evidence Act provides that in an action by or against the heirs, executors or administrators of a deceased person, an interested party cannot obtain a judgment on their own evidence about events before the death unless it is corroborated by other material evidence. Manitoba’s Evidence Act, CCSM c E150, has no equivalent provision. In Manitoba the question is governed by the common law hearsay rules, although, as the cases below show, corroboration still carries great weight in practice.

Two recent cases

Two recent decisions show how the reliability analysis plays out, and why the answer often turns on who is repeating the statement and what else supports it.

Burko v Martindale, 2023 BCSC 2

Two neighbouring landowners in British Columbia disputed the location of their shared boundary, which depended on whether a creek had moved. A witness gave evidence of statements made to him by a former owner of the adjacent property, who had since died. The trial judge received the statements subject to the objection and then decided whether each one was admissible.

Necessity was established because the former owner had died. On reliability, the judge explained that a statement is substantively reliable where it is “made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken,” taking into account any corroborating or conflicting evidence. The judge also stressed that this is a threshold question. The court asks only whether the statement is reliable enough to be considered at all. How much weight it deserves is decided later, with the rest of the evidence.

In applying that test, the judge placed considerable weight on whether each statement was supported by other witnesses or by documents. Two of the three statements were admitted.

Officer v The Estate of Charles Herbert Officer, 2024 ONSC 6029

A man died without a will, leaving a young son as his sole beneficiary. His mother had been living in a condominium he owned, and she said he had verbally agreed she could live there rent-free for the rest of her life, paying only the utilities. By the time of his death the condominium was held jointly with his former partner, who became the sole owner by right of survivorship. She could not afford to carry the unit and sought vacant possession.

The court found no traditional exception applied and turned to the principled approach. Necessity was met because the son had died. The mother also gave her evidence under oath and was cross-examined. Even so, the court declined to admit the alleged promise. The mother had an obvious motive to fabricate, and nothing corroborated a lifetime arrangement. The court noted that the condominium carried a substantial mortgage, that the deceased was not wealthy, and that if he had intended to give his mother what amounted to a life interest, he would likely have told his partner or put it in writing.

The court added that even if the promise had been made, it was unenforceable because the mother had given no consideration for it. Permission to live somewhere rent-free does not by itself create a legal right to stay.

Practical Takeaway

These cases highlight the fact-dependent nature of this area of law, as the Court must take a nuanced approach in determining the admissibility of hearsay evidence of statements made by a deceased individual. The practical lesson is that a deceased person’s words are not admitted simply because they are important or because no better evidence is available. A party seeking to rely on them should be prepared to show why the statement is trustworthy, including when and why it was made, whether the person repeating it has an interest in the outcome, and whether documents, conduct, or independent witnesses corroborate it. Even if the statement is admitted, the court must still decide what weight it deserves and whether the alleged promise created an enforceable legal obligation.

This article provides general information only and is not legal advice. Whether a particular statement will be admitted depends on the facts of each case. If you are involved in a dispute that turns on what a deceased person said or promised, please contact Simon Garfinkel at Taylor McCaffrey LLP.

DISCLAIMER: This article is presented for informational purposes only. The views expressed are solely the author(s)’ and should not be attributed to any other party, including Taylor McCaffrey LLP. While care is taken to ensure accuracy, before relying upon the information in this article you should seek and be guided by legal advice based on your specific circumstances. The information in this article does not constitute legal advice or solicitation and does not create a solicitor-client relationship. Any unsolicited information sent to the author(s) cannot be considered to be solicitor-client privileged.

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