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Why False Affidavits in Probate Go Unpunished — and Why That Should Concern Us All
In Canadian law, swearing a false affidavit is supposed to be a serious offence — it’s called perjury, and it’s a crime under section 131 of the Criminal Code. But if you’ve ever been involved in an estate dispute, you may have noticed something strange: even when someone lies under oath, nothing happens.
This isn’t a rare occurrence. In probate litigation — where family members are often battling things perceived or real. — false affidavits have become commonplace. People swear statements that are knowingly misleading or outright untrue, often to tilt the court process in their favour. And yet, no one is ever charged.
That’s not because the law doesn't apply. Perjury technically applies in civil cases, including estate matters. But in practice, the system turns a blind eye. Prosecutors don’t lay charges. Judges don’t refer matters for investigation. Lawyers may raise an eyebrow, but few take formal steps. The lie gets absorbed into the process, like a stain no one bothers to clean. And the lie is believed.
The result? A quiet but dangerous message is being sent:
If you’re in probate court, and you think lying might help — go ahead, especially if your lawyer present the lie in an affidavit, so you rationalize it must be okay.
This is devastating if you have your own lawyer or not. Without the resources to have your lawyer prove it, hire investigators or cross-examine professionally, the lie becomes nonconsequential. Even when the falsehood is obvious, the court will call it a “credibility issue” or a “misunderstanding” rather than what it really is: a calculated abuse of the system.
This isn’t just a problem of legal technicality. It’s a problem of principle. When people can lie in sworn affidavits without consequence, as it is a civil lie rather than a criminal lie, the very idea of justice starts to erode. Truth becomes optional. The courtroom turns into a battleground where strategy beats honesty — and that’s not a justice system. That’s a game.
Probate litigation is already emotionally and financially exhausting. But when the courts tolerate false sworn statements — especially from those in positions of advantage — it deepens the unfairness. And it tells the public that the law doesn’t apply equally, even when it should.
It’s time to name this problem for what it is. If perjury isn’t enforced in probate, then let’s be honest and say so. But if we still believe in the importance of truth in the courtroom, then the justice system must prove it — not with words, but with action.
