13.18: Types of affidavit

Case Summary

An Action for formal proof of a will was brought by one of the testator’s two surviving adult children as sole personal representative and beneficiary. The other surviving adult child challenged the validity of the will on the basis of testamentary capacity.

In resolving the validity of the will on a summary basis, Justice Goss considered admissibility of the parties’ Affidavit evidence. Her Ladyship, noting that the Rules apply in surrogate matters where not otherwise provided for in the Surrogate Rules AR 130/1995, referred to the requirement in Rule 13.18 that Affidavit evidence in support of a dispositive Application must be sworn on the basis of personal knowledge. However, given that the mental state of the testator was in issue, the Court held that hearsay evidence on the state of mind of the testator was admissible, citing with approval Sweetnam v Lesage, 2016 ONSC 4058: “[d]eclarations of intention or state of mind by testators stand on a special footing. Courts have traditionally taken a more liberal stance in will cases and have admitted a testator’s post-testamentary statement of memory or belief to establish antecedent facts.”

Ultimately, the will was determined to be invalid.

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