Dead Man’s Statutes

Dead Man’s statutes apply to persons having an interest in a legal action and operate as a bar to their testimony as to transactions and communications between them and the deceased person[i].

The statute prohibits a person from testifying as a witness to establish his/her own claim or defense against the estate of a deceased person which originated during the lifetime of such deceased person[ii].

Dead Man’s Statutes provide that a party to a proceeding by or against a personal representative, heir, devisee, distributee, or legatee as such, in which a judgment or decree may be rendered for or against them, or by or against an incompetent person, may not testify concerning any transaction with or statement made by the dead or incompetent person, personally or through an agent since dead, unless called to testify by the opposite party, or unless the testimony of the dead or incompetent person has been given already in evidence in the same proceeding concerning the same transaction or statement[iii].

The purposes of the statutes are to protect decedents’ estates from fraudulent claims and to equalize the position of the parties in regard to the giving of testimony[iv].  The statutes prevent interested parties from giving self-serving testimony about conversations or transactions with the decedent.

Parties are prevented by Dead Man’s statute from testifying regarding[v]:

  • conversations with the decedent;
  • events taking place in the presence of the decedent;
  • the decedent’s competence; or
  • whether the decedent was under any undue influence.

 

To render a person incompetent as a witness under a dead man’s statute, s/he must have some legal, certain, and immediate interest in the event of the action with respect to the issue to which his/her testimony relates; and the burden is upon the party objecting to the witness to make his/her incompetency clearly appear[vi].

The test of whether a Dead Man’s Statute applies in particular circumstances does not depend upon semantics or technical niceties.  The factors considered by the courts in each instance are[vii]:

  • whether the witness has a personal and immediate interest in the issue being litigated (in which event the law presumes a tendency or at least a temptation to therefore give false, self-serving testimony), and
  • whether the other party to the communication about which testimony is elicited is deceased so that the personal representative is deprived of the decedent’s version of the communication.

 

Dead Man’s Statutes are not applicable to a controversy over the appointment or removal of an administrator, even where the validity of the appointment may depend upon his/her being a creditor[viii].

An exception to the Dead Man’s Act provides that if any person testifies on behalf of the representative to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability, any adverse party or interested person, if otherwise competent, may testify concerning the same conversation or event[ix].

The elements which must exist under a dead man’s statute in order to exclude testimony are:

  • the matter to be testified to must be in the nature of a personal transaction or communication;
  • the witness must be one who is silenced by the statute; and
  • the person against whom he or she would testify must be one who is protected by the statute.

 

Dead man’s statutes are the last surviving remnants of rules that prohibited testimony by those with an interest in the litigation.  Accordingly, they are not looked upon with favor and the courts strictly interpret the statute to prevent their use.  The courts have insisted upon exceptionally strict rules as a prerequisite to the application of the dead man’s statutes[x].

A person entitled to protection of a statute prohibiting a witness from testifying to transactions with a decedent can waive incompetency of witness[xi].

The protection of the deadman’s statute may be waived when the protected party introduced evidence concerning a transaction with the deceased[xii].  The protection can be waived only by parties protected by the statute[xiii].  Further, once there was a waiver of the statute, it constituted a waiver for all purposes[xiv].

If the bar of the statute is waived, or, if evidence of conversations or transactions with the decedent by parties in interest is admitted without objection, the evidence is entitled to the same credence and weight as any other evidence received[xv].

[i] Clark v. Grimsley, 270 So. 2d 53 (Fla. Dist. Ct. App. 1st Dist. 1972).

[ii] In re Collier, 381 So. 2d 1338 (Miss. 1980).

[iii] Montgomery County v. Herlihy, 83 Md. App. 502 (Md. Ct. Spec. App. 1990).

[iv] Ruback v. Doss, 347 Ill. App. 3d 808 (Ill. App. Ct. 1st Dist. 2004).

[v] Hanks v. Justus (In re Estate of Justus), 243 Ill. App. 3d 737 (Ill. App. Ct. 3d Dist. 1993).

[vi] In re Estate of Arnt, 237 Minn. 245 (Minn. 1952).

[vii] Estate of Parson, 416 So. 2d 513 (Fla. Dist. Ct. App. 4th Dist. 1982).

[viii] Estate of Soothcage v. King, 227 Md. 142 (Md. 1961).

[ix] In re Estate of Deskins, 128 Ill. App. 3d 942 (Ill. App. Ct. 2d Dist. 1984).

[x] Hunzinger Constr. Co. v. Granite Resources Corp., 196 Wis. 2d 327 (Wis. Ct. App. 1995).

[xi] In re Estate of Golding, 58 Nev. 274 (Nev. 1938).

[xii] Bentzen v. Demmons, 68 Wn. App. 339 (Wash. Ct. App. 1993).

[xiii] Small v. Shure, 94 So. 2d 371, 374 (Fla. 1957).

[xiv] Briscoe v. Fla. Nat’l Bank, 394 So. 2d 492, 494 (Fla. Dist. Ct. App. 3d Dist. 1981).

[xv] Boettcher v. Busse, 45 Wn.2d 579 (Wash. 1954).


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