SOURCE: Kushner Law

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January 27, 2017 13:00 ET

Vancouver Litigation Lawyers Discuss Credibility in Estate Litigation

Vancouver litigation lawyers discuss finding the truth when the testator is no longer around

VANCOUVER, BC--(Marketwired - January 27, 2017) - As experienced litigation lawyers in Vancouver, the team at Kushner Group have recently published a blog on the importance of credibility. Estate litigation is an area of law where issues of credibility are often central to the case. When a dispute revolves around actions or discussions that occurred before a death, the only person who actually knows the truth is no longer around to weigh in. Therefore, credibility can determine the outcome of a case. For more, go to: http://kushnerlaw.ca/credibility-in-bc-estate-litigation-2016-case-law/

The blog specifically examines a case in 2016 where the appellant's lawyer argued that the Trial Judge erred in making findings of credibility.

The case, Franklin v. Cooper, 2016 BCCA 447, centered on a dispute between two sisters as to whether there was an agreement that one sister became a joint tenant on a piece of property by way of an oral agreement in 1989. The Court found there was no agreement and as such the appellant was found to hold title on behalf of the Estate.

The Court made the following comments with respect to credibility:

[9] The judge recognized, in the passage that I have already quoted, that this was a case that turned on credibility. She took pains to set out contradictions in the evidence, and to explain why, despite certain contradictions, she preferred the evidence of Ms. Franklin to that of Ms. Cooper. The trial judge referred to most, if not all, of the evidence referred to in the appellant's submissions, and explained why she did not come to the conclusions that the appellant urges upon us.

[10] Particularly in divisive litigation between members of a family, differing accounts of events are common. It is not unusual for the testimony of witnesses at trial to differ, in some details, from their evidence at discovery. It is also not unusual for there to be minor internal inconsistencies in an individual's evidence. In this case, the judge noted the various inconsistencies, and provided reasons why she considered some to be of importance, and others to be of no moment.

[11] The contention that there are "badges" of credibility is, in my view, overstated. It is true that all judges will look to certain features of the evidence in weighing it. They will consider, for instance, the independence of a witness -- the question of whether they have an interest in the litigation, or lack any motive to be partial. They will consider inconsistencies in the evidence of a witness, and inconsistencies between the evidence of one witness and another. They will consider the opportunity that a witness had to observe the events that they describe, and the extent to which they are able to recall the events in general and in detail. I do not disagree with Mr. Lenaghan's observations, then, that various features of the evidence should be considered by a judge in assessing credibility. While not a term of art, I do not take issue with his labelling of the positive attributes of evidence as being "badges of credibility".

To understand the intricacies of challenging a will and how credibility may be established, consulting a litigation lawyer is highly recommended. Call 604-629-0432 to speak to a legal professional today.

About the Company

The Kushner Law Group was founded on the principle that a small law firm should be able to offer the same level of legal advice as a big firm at an affordable cost. A unique combination of legal experience and creativity allows the professionals at Kushner to come up with creative and practical solutions for a variety of legal problems.

For additional information, please visit http://kushnerlaw.ca/ or call 604-629-0432.

Contact Information

  • Kushner Law Group
    Lars Kushner
    Phone 604-629-0432
    Fax 604-689-4451
    Company website: http://kushnerlaw.ca/
    1008 Beach Ave #105