The Guide to Dead Man’s Statute and Exceptions

What is Dead Man’s Statute?

Dead Man’s Statute, also known as “Dead Man’s Rule” or “Dead Man Act,” is a rule of evidence that prohibits an interested party from testifying about conversations or transactions with a deceased person in a civil case. This limitation only applies if all of the following criteria are met:

  • The witness has an interest in the outcome of the litigation.
  • The witness is testifying to advance their own interests. 
  • The witness is testifying against the interests of the deceased person.
  • The case is civil, not criminal.

Since Dead Man’s Statutes are created under state law, the specific terms of the rule vary among states. Some states take a broader definition of what information is banned, while more than half of the states, including California, have done away with the Dead Man’s Statute altogether and generally allow testimony about statements made by a deceased person.

However, California has created evidence rules that allow certain testimony that would be inadmissible under the Dead Man’s Statute to be excluded if a judge determines that it is not trustworthy. 

California Evidence Code § 1260 allows for the admission of the following statements by a deceased person:

  • That the declarant has or has not made a will or established or amended a revocable trust.
  • That the declarant has or has not revoked his or her will, revocable trust, or an amendment to a revocable trust.
  • That identifies the declarant’s will, revocable trust, or an amendment to a revocable trust.

Similarly, California Evidence Code § 1261 allows evidence of a deceased person’s statement to be admitted “when offered in an action upon a claim or demand against the estate of the declarant if the statement was made upon the personal knowledge of the declarant at a time when the matter had been recently perceived by him and while his recollection was clear.”

Both of these rules include the following exception: ”Evidence of a statement is inadmissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness.”

Are there Dead Man’s Statute exceptions?

In all of the states where a Dead Man’s Statute exists, the rule is subject to at least one exception. However, the scope of the statute and its exceptions varies drastically among statutes. Some states limit the rule to certain parties, specific proceedings, or certain types of statements. 

While you’ll need to check the law in your state to determine the extent of the application of the Dead Man’s Statute, here are a few commonly-recognized exceptions:

  • The testimony can be admitted when the party’s testimony about the statement is corroborated by other evidence.
  • The testimony can be admitted when the opposing party calls the party to testify at the trial about the statement.
  • The testimony can be admitted from the executor of the estate if the executor is not also a beneficiary.
  • The testimony is a written statement made by the deceased rather than an oral statement.

How does Dead Man’s Statute affect contesting a will or trust?

The Dead Man’s Statute can apply to will contests both before and after probate and can prohibit interested parties from testifying about statements made by the deceased. This means that if you want to contest a will or trust in a state that has a Dead Man’s Statute, you generally won’t be able to testify about oral conversations you had with the deceased. However, if a non-interested party was also present for these conversations, the Dead Man’s Statute might not prohibit them from introducing the evidence.

Again, the laws will differ among states, but here are a few examples of parties who have been found to be interested parties that are bound by the Dead Man’s Statute:

  • The named executor of the will 
  • Beneficiaries or previous beneficiaries of the will
  • The deceased’s heirs-at-law
  • A trustee of a testamentary trust
  • A spouse of an interested party

When should I contact an estate attorney?

If you need to contest a will or trust, you should contact an estate attorney as soon as possible. There is a limited amount of time in which a contest can be filed, so it’s essential that you act quickly in order to protect your interests. While California law does not require you to hire an estate attorney to contest a will or trust, this area of law is particularly complex, and will and trust contests are incredibly challenging to win. The assistance of an experienced probate litigation lawyer can make all the difference.

 

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About RMO, LLP

RMO LLP serves clients in Los Angeles, Santa Monica, Ventura, Santa Barbara, San Francisco, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri, and Kansas. Our founder, Scott E. Rahn, has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates. For a free consultation, call (424) 320-9444 or visit: https://rmolawyers.com.