Yesterday, the British Columbia Court of Appeal ordered a new trial in Jung v. HSBC Trust Company, 2006 BCCA 549.
I wrote about the trial court's decision in Jung, Re Estate of Horace Lee, 2005 BCSC 1537, in this post on November 5, 2005. At trial, Mr. Justice Burnyeat found that the testator, Hubert Lee, had inserted the names of the beneficiaries of a will he made in 1985, after the witnesses to the will had signed the will. The trial judge held that although the 1985 will was valid, the additions made after the will was witnessed could not be given effect. Mr. Justice Burnyeat considered in depth the doctrine of dependent relative revocation, and held that the revocation clause in the 1985 will did not revoke Mr. Hubert Lee's earlier will leaving his estate to his brother Horace Lee.
In the Court of Appeal, the appellants, who were named as beneficiaries in the 1985 will, challenged the trial judge's finding of fact that the beneficiaries' names were inserted after the 1985 will was witnessed. At trial both witnesses testified that the beneficiaries' names were already in the 1985 will when they witnessed it. But, the trial judge had preferred the evidence of a lawyer who testified that one the witnesses had told the lawyer on the telephone that the portions of the will containing the gifts to the beneficiaries were blank when the testator and the witnesses signed the will.
The Court of Appeal held that the trial judge ought not to have relied on the lawyer's testimony of what the witness told the lawyer as proof that the names of the beneficiaries were not present when the will was signed. The lawyer's evidence of the telephone conversation could be used to impeach the witness' evidence at trial. For example, the trial judge was entitled to find that the witness' evidence at that the will was complete was not reliable on the basis of the witness' previous inconsistent statement to the lawyer. But, the Court of Appeal held that the trial judge could not make a finding of fact that the will was blank on the basis of the lawyer's evidence.
The difficulty with the lawyer's evidence is that it was hearsay. In other words, it was a statement made of what the witness told the lawyer for the purpose of proving that what the witness told the lawyer was true. Although in some cases hearsay evidence is admissible to prove the truth of the contents of the statements, there must first be sufficient indicia that the hearsay statements are both necessary and reliable. In this case, the Court of Appeal held that there were insufficient indicia of reliability to admit the witness' statement to to the lawyer as evidence that the names of the beneficiaries were not in the 1985 will at the time the testator and witness' signed it.
The Court of Appeal did not comment on Mr. Justice Burnyeat's analysis of the doctrine of dependant relative revocation.
[After a new trial, reported here, Mr. Justice Silverman found that the portion of the will containing the gifts to the other siblings was in the will when Henry Lee and the witnesses signed the will. I have now written about the decision here.]
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