BREACH OF FIDUCIARY DUTY BY THE WILL MAKER – EXECUTOR AND TRUSTEE'S ROLE – EVIDENTARY ISSUES – WHAT TO DO ABOUT ABUSE CLAIMS? – PART V

In almost every case, the majority of the evidence will come from the allegedly abused child and, as such, the strength of that evidence can be problematic.

In these types of situations, one must not forget the requirement of corroborative evidence pursuant to section 13 of the Estates Act R.S.O. 1990, c. E.23, which provides that:

13. 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.

See also Schnurr B.A., “Estate Litigation – Requirement of Corroboration”, 5 E.T.Q. 42.

Due to the evidentiary difficulties of these types of claims, one of the first steps that a claimant should consider taking is to obtain an expert’s opinion.

The expert’s opinion should contain evidence for the Court to consider with respect to such things as the recollections of the claimant, the details of abuse over the years and the results of both the mental and physical ramifications of that abuse.

In support of that opinion, corroborative evidence should be obtained from as many medical institutions as possible. Evidence from the medical records of the child would presumably refer to long-term psychiatric care and, in particular, some reference to the abuse over the years.

To further assist, every effort should be made to obtain supporting corroborative evidence from family, friends and neighbours. In my view, anyone who has even a brief recollection of instances, such as the police showing up at the house for no apparent reason, episodes of yelling and screaming, or witnessing the actual physical attacks, can make or break a case.

It seems to me that, given the frailties of the evidence that must be led, one really must obtain a comprehensive and supportive expert’s opinion, at a minimum.

Another precautionary consideration that should be reviewed with any child who is considering pursuing a claim for breach of fiduciary duty of parental obligations, is the nature of the evidence that must be led. In order to succeed, the child must be prepared to give full and frank disclosure of his/her physical and mental condition – and in many cases, this won’t be easy.

All the best, Ian and Suzana.