Blumberg Segal LLP

Blumberg Segal LLP
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The Ontario Superior Court of Justice recently held in an Estate Litigation matter, Hill v. Hill [2012] O.J. No. 4891, that allegations of fraud must be proven by the alleging party in order to be successful, and simply asserting such allegations of fraud, without proper supporting and corroborating evidence would be fruitless, as the court requires a high degree of certainty to prove such serious allegations.

In Hill v. Hill, the applicant, one of four children, applied to the court to enforce a partnership agreement between the applicant and his recently-deceased mother. The partnership agreement was made in 2001 and included provisions relating to the operation, ownership and buyout of farm property. According to the agreement the applicant’s mother retained ownership of all the property. However, the agreement also permitted the applicant to buyout his mother’s entire share for annual payments of $9,000 for a period of 10 years, ending December 21, 2010. The agreement further provided that in the event of his mother’s death, 50% of any balance owing was to be forgiven and the remaining 50%, capped at $9,000, was to be paid. The agreement was witnessed by his mother’s lawyer. At the time of the application, the applicant submitted that he had paid $81,000 with proof of all payments except for $1,000 and had the final $9,000 payment in trust.

The respondent, the applicant’s brother who represented his mother’s interests initially as litigation guardian due to her failing health and later as her estate trustee when she passed, disagreed with the agreement. The respondent submitted that the applicant did not make the payments, that the receipts were fraudulent and that the applicant breached the agreement in several ways with respect to the operation of the farm, payment of expenses and sharing of income.

The court allowed the application and relied on section 13 of the Evidence Act, which states,

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 materials evidence.

As the respondent did not “clearly and distinctly” prove that the receipts were fraudulent, he lacked the required corroborating evidence of his allegations of fraud.  The deceased mother had been shown the allegedly fraudulent receipts just before her death when her competence was failing, and her failure to recall some of the receipts was not determinative for the Respondent’s position that the receipts were not accurate.  In addition, when the respondent sent the receipts to the Centre of Forensic Sciences (CFS), CFS confirmed that seven of the nine receipts were, in fact, signed by his mother, corroborating the Applicant’s version of events. Furthermore, the next door neighbour testified that she was aware of the agreement between the deceased and the Applicant and witnessed the signing of receipts by their mother for at least 9,000.00.  There was also no indication that the applicant’s mother was concerned or unhappy with the agreement made with her son for the purchase of the property. 

Based on the lack of corroborating evidence presented by the Respondent, the court held that the respondent did not meet the required standard or proof to establish fraud.  Furthermore, since the applicant offered to pay the final amount of $9,000 before his mother’s death and was refused, he was only required to pay 50% of the final payment, $4,500, to satisfy the terms of agreement and purchase the property.

Estate Litigation is a complicated area of the law, which requires analysis of the factual matrix of the case with regard to the applicable legislation, whether the estate falls under the Succession Law Reform Act, the Trustee's Act, the Estates Act or the Evidence Act or all appropriate legislation, it is important for executors, Estate Trustees and beneficiaries under and estate to understand their legal rights, responsibilities and obligations.

Blumberg Segal LLP has a broad range of experience in Estate Litigation matters representing the Estate Trustees and the beneficiaries or even excluded beneficiaries under an estate.  If you are involved in the administration of an Estate, as either an Estate Trustee a beneficiary or an excluded beneficiary, it is vitally important that you understand your rights, obligations and responsibilities in the administration of the estate. 

Please contact Blumberg’s Estate Litigation group at or call Scott Chambers at 416-361-1982 for more information.