A person entitled to the protection of a statute prohibiting a witness from testifying to transactions with a decedent can waive incompetency of witness[i].
The protection of the deadman’s statute may be waived when the protected party introduced evidence concerning a transaction with the deceased[ii]. The protection can be waived only by parties protected by the statute[iii]. Further, once there was a waiver of the statute, it’s considered a waiver for all purposes[iv].
The purpose of the dead man statute is to prevent interested parties from giving self-serving testimony about conversations or transactions with the decedent. The statute may be waived if the adverse party introduces testimony on direct or cross-examination regarding the transaction in question[v].
Thus, an estate of a decedent may waive the protection of the dead man’s statute and render a witness competent by calling the witness on the estate’s behalf, by failing to object when the adverse party calls himself to testify on his/her own behalf, or by questioning the witness beyond the scope of direct examination[vi].
If 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[vii].
When objection to the admissibility of testimony relating to conversations with a deceased person by an interested witness has been properly made and erroneously overruled or such testimony is received under a reserved ruling by the trial court, the party making such objection does not waive his/her rights by cross-examining the witness on the same matters or offering direct evidence thereon to counter that which was erroneously admitted[viii].
An examination is a waiver of the protection afforded by the Dead Man Statute to the extent that either party may use it at trial[ix]. A waiver at one stage continues throughout the proceedings.
If the representative of the deceased called the interested person as a witness, or took his/her examination before trial, or cross examined him/her, this constitutes a waiver, throughout the proceedings.
An objection to the admission of certain testimony under the Dead Man’s Statute may be waived by a failure to object to other testimony wherein the same subject matter is discussed[x].
Where a party representing a deceased person waives the incompetency of an interested witness to testify as to a transaction with the deceased, s/he must be held to have waived the incompetency of the witness to testify as to those matters in a subsequent suit in which the parties and issue are practically the same[xi].
An adverse party’s introduction of evidence concerning a transaction with a deceased at an earlier proceeding or submitted in connection with a motion for summary judgment may result in a waiver of the protection of the deadman’s statute[xii].
Statements made by a personal representative that the deceased never told the personal representative about the existence of an oral agreement to make a will may result in a waiver of the protection of the deadman’s statute.
Where the witness is not a party to the cause, and his/her incompetency does not appear by the record, an objection to his/her testimony, made after s/he is sworn in chief, is considered on time[xiii]. An objection based upon the dead man’s statute made immediately after the swearing of a witness is timely but the objection cannot be urged for the first time on appeal.
[i] In re Estate of Golding v. Painter, 58 Nev. 274 (Nev. 1938).
[ii] Bentzen v. Demmons, 68 Wn. App. 339 (Wash. Ct. App. 1993).
[iii] Small v. Shure, 94 So. 2d 371, 374 (Fla. 1957).
[iv] Briscoe v. Fla. Nat’l Bank, 394 So. 2d 492, 494 (Fla. Dist. Ct. App. 3d Dist. 1981).
[v] Erickson v. Kerr, 125 Wn.2d 183 (Wash. 1994).
[vi] Estate of Hann v. Hann, 614 N.E.2d 973 (Ind. Ct. App. 1993).
[vii] Boettcher v. Busse, 45 Wn.2d 579 (Wash. 1954).
[viii] In re Estate of Arnt, 237 Minn. 245 (Minn. 1952).
[ix] Breedlove v. Aerotrim, U.S.A., Inc., 142 N.C. App. 447 (N.C. Ct. App. 2001).
[x] Polhemus v. Cobb, 653 So. 2d 964 (Ala. 1995).
[xi] Billingsley v. Gulick, 256 Mich. 606 (Mich. 1931).
[xii] Bentzen v. Demmons, 68 Wn. App. 339 (Wash. Ct. App. 1993).
[xiii] Gilmour v. Hawley Merchandise Co., 21 Colo. App. 307 (Colo. Ct. App. 1912).