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States Continue to Bury Testimony From the Grave, but Many Dead Man’s Statutes Remain Alive and Well

Summary

The Supreme Court of Wisconsin recently voted unanimously to repeal the state’s set of so-called dead man’s statutes. As of July 1, 2017, the effective date of the court’s order, Wisconsin joined 29 other states that have repealed similar statutes and rules. In states that have not repealed their statutes, the exclusionary effect of a dead man’s statute can create an insurmountable evidentiary hurdle that results in involuntary dismissal of claims that depend on testimony that would be otherwise admissible and credible. Because the dead man’s statutes that remain vary widely in scope, it is important to evaluate the potential impact of the specific dead man’s statute, if any, that is applicable in your case.

In Depth

The term “dead man’s statute” is defined generally as “[a] law prohibiting the admission of a decedent’s statement in certain circumstances, as when an opposing party or witness seeks to use the statement to support a claim against the decedent’s estate.” Many states’ statutes are broader than this definition suggests, however, and may bar evidence of “any matter occurring before the death” of a party. Thus, dead man’s statutes may apply in cases involving claims made by or against a decedent’s estate. These laws have been justified on the grounds of fairness to the deceased, protection of decedents’ estates from false claims, and safeguarding against perjury. Dead man’s statutes also have “been roundly criticized as ignoring the interests of the living” because they defeat “more honest claims than there would be fictitious claims established if all such enactments were swept away.” 

A recent case in Illinois illustrates the competing public policies behind the enactment and repeal of dead man’s statutes. In Spencer v. Wayne, 80 N.E.3d 764 (Ill. App. Ct. 2017), the plaintiff alleged that injuries she sustained from slipping on a mat and falling in the defendant’s garage were caused by the defendant’s negligence. The plaintiff slipped on the mat while the defendant was in the driver’s seat of a car parked in the garage. The defendant died while the case was pending, and the special representative of her estate subsequently filed a motion for summary judgment based on the Illinois dead man’s statute

In support of her motion, the special representative argued that the Illinois dead man’s statute barred the plaintiff’s testimony regarding the fall because it occurred in the defendant’s presence. The trial court determined that the statute applied and entered an order granting summary judgment. The appellate court affirmed.

The appellate court found that it “was indisputabl[e]” that the defendant was in the plaintiff’s presence when she fell. Still, the plaintiff argued that the Illinois dead man’s statute should not bar her testimony because the defendant was in the driver’s seat of the car and could not have seen plaintiff’s feet when she fell. The appellate court rejected this argument as “circular” because the plaintiff’s testimony was the only evidence of the defendant being in the driver’s seat when the fall happened, and this testimony was also barred by the Illinois dead man’s statute. The appellate court held that “because plaintiff’s testimony that [defendant] was in the driver’s seat at the time of her fall is barred under the Act, so is her testimony about the fall itself.” Had the plaintiff presented admissible evidence that the defendant was in the driver’s seat, the appellate court would have permitted the plaintiff to testify about her fall.

Spencer illustrates both the purpose of dead man’s statutes and the reason for their repeal in many states. On one hand, it would arguably be unfair to have allowed the plaintiff to testify as to the cause of her injuries when the defendant, if living, might have refuted the plaintiff’s testimony. On the other hand, the application of a dead man’s statute made it impossible for a plaintiff to prove her case against a defendant who may have actually been negligent in causing the plaintiff’s injury.  

Thirty states, including California, Florida, Alaska, Delaware, Nevada and South Dakota, do not currently have dead man’s statutes. In these states, every witness is competent to testify on any matter, subject to attacks on his or her credibility and ordinary evidentiary rules. Some of these states, such as California, Utah and South Dakota, have enacted special hearsay rules that enable the court to exclude out-of-court statements made by a decedent when circumstances indicate that the statements are untrustworthy.  

The other 20 states (and the District of Columbia) retain some form of dead man’s statute. The scope of these statutes varies widely. Some states limit the application of their statutes to testimony from the parties, certain types of proceedings (e.g., proceedings against a decedent’s estate or proceedings to enforce a debt against a decedent) or certain types of statements (e.g., oral but not written statements). Other states, such as New York and Illinois, have broad dead man’s statutes that bar not only communications made by a decedent, but also evidence of transactions with the decedent or events that took place in the presence of the decedent. All dead man’s statutes are subject to one or more legislatively created or judicially recognized exceptions. For example, in Texas and other states, a party’s testimony concerning a statement made by a decedent is admissible only if corroborated by other evidence.

In light of the significant variance among states in the admissibility of evidence concerning transactions with the deceased, it is important to examine the scope of the specific dead man’s statute, if any, that may apply in a particular case. Moreover, when a court in more than one state can establish jurisdiction, the dead man’s statute applicable in each jurisdiction should be considered as an important factor when selecting a forum.  

© 2018 McDermott Will & Emery

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About this Author

Monica Asher, commerical litigation lawyer, McDermott
Partner

Monica Asher focuses her practice on complex commercial litigation and private client litigation. She has represented clients in partnership disputes, breach of contract, antitrust and trademark infringement matters.

Monica also has a broad range of experience in estate and probate proceedings and has represented clients in will contests, trust disputes and guardianship proceedings, among other matters.

Monica has significant appellate experience, having handled multiple appeals at the federal court level and to the New York State Appellate Division and...

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Joseph Viviano, McDermott, Litigation lawyer
Associate

Joseph Viviano focuses his practice on matters relating to estate planning, estate administration, and controversies involving trusts and estates.

Previously, Joe worked for a leading law firm in Michigan. He holds a Certificate in International Foundations and has litigated multimillion dollar claims involving undue influence, lack of mental capacity, and breach of fiduciary duties before the Michigan Court of Appeals and Michigan Supreme Court.

While in law school, Joe received multiple scholarships, served as Executive Editor for the Journal of Business and Securities Law, and was a member of moot court.

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