Section 11 and the Requirement for Corroborating Evidence

When a person dies, section 11 of the Alberta Evidence Act may be invoked with respect to a claim against the estate.

The section reads as follows:

Evidence in action by heir, etc.
11 In an action by or against the heirs, next of kin, executors, 
administrators or assigns of a deceased person, an opposed or 
interested party shall not obtain a verdict, judgment or decision on
that party’s own evidence in respect of any matter occurring before
the death of the deceased person, unless the evidence is
corroborated by other material evidence.

Several cases outline the purpose of this provision.

In Koziey Estate (Re), 2019 ABCA 43 the Court commented at paragraph 16 that:

“this provision is obviously directed at the type of situation that arises… where the deceased person is said to have engaged in a material conversation, but the estate has no practical way to respond. The appellant is seeking to displace the estate’s possession-in-fact, and is effectively seeking a judgment based on his own evidence, in respect of a matter that occurred before [the deceased’s] death.”

Section 11 was also applied in Snowball v. Ham Estate, 2021 ABQB 497. In this case a lawyer, Ms. Snowball, had worked for another lawyer, Mr. Ham, as an independent contractor. After Mr. Ham’s death, Ms. Snowball claimed she was entitled to 50% of Arbitration Funds. However, there was one specific hurdle to her claim, being section 11 and the requirement for corroborating evidence.

Ms. Snowball pointed to several pieces of evidence, which included:

  1. Mr. Ham’s May 18, 2018 email suggesting to Mr. Hickerson that the Contingency Agreement contain an express allocation of fees “between Municipal Counsellors (Hugh and Laura) and yourself”;
  2. The email correspondence between Mr. Ham and Mr. Hickerson on March 7, 2019;
  3. The letter from High Country to Mr. Ham, Mr. Hickerson and Ms. Snowball confirming that the three of them worked diligently and thoroughly and earned the contingency fee;
  4. Mr. Ham’s July 25, 2019 email asking Mr. Hickerson to forward a cheque for his and Ms. Snowball’s share and confirming that he will pay Ms. Snowball what she is due;

The Honourable Justice Jones held that Ms. Snowball did not provide sufficient corroborating evidence as required by section 11 of the Alberta Evidence Act. Although the Court accepted that Ms. Snowball was to receive payment from the Arbitration Funds, none of the evidence she provided confirmed the quantum of funds she was to receive.

This case demonstrates the evidentiary burden claimants may face when commencing a claim against an estate of a deceased. If you have questions regarding a claim against an estate, contact one of the lawyers at Kantor LLP. We are happy to answer any questions.


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