In probate and estate litigation, parties often wish to present evidence relating to communications with a decedent whose estate is the subject of the court action. Some states have laws known as dead man’s statutes that prohibit witnesses from testifying concerning discussions with a deceased person in specific circumstances. The Minnesota legislature repealed the state’s dead man’s statute in 1987. Provisions in the Minnesota Rules of Evidence now govern testimony relating to conversations with a deceased person.
A dead man’s statute, also known as a dead man’s act or dead man’s rule, is a law that establishes a rule of evidence relating to introduction of testimony about communications with a decedent or mentally incompetent person. The rule prohibits testimony by a witness with an interest in the outcome of a case from testifying about communications or transactions, when the testimony is in the witness’s own interests and against the interests of the decedent.
The stated purpose of a dead man’s law is to protect a decedent’s estate by preventing a person from fabricating evidence in support of a claim against the estate, since the decedent is not able to dispute such evidence. The goal of a dead man’s statute is to prevent perjury in litigation over a decedent’s estate.
For many years, the State of Minnesota had a dead man’s statute, Minn. St. 595.04, that provided as follows:
It shall not be competent for any party to an action, or any person interested in the event thereof, to give evidence therein of or concerning any conversation with, or admission of, a deceased or insane party or person relative to any matter at issue between the parties, unless the testimony of such deceased or insane person concerning such conversation or admission, given before his death or insanity, has been preserved and can be produced in evidence by the opposite party, and then only in respect to the conversation or admission to which such testimony relates.
By the 1970s, dead man’s statutes had become the subject of extensive criticism by legal scholars, in court opinions, and by lawyers involved in developing changes to the rules of evidence. The objections centered largely on the fact that the laws created an injustice by prohibiting proof of honest claims and arose from a faulty belief that self-interest makes it likely that people will commit perjury.
In 1974, the Minnesota Supreme Court reviewed application of the state’s dead man’s statute in the case of In Re Estate of Lea, 222 N.W.2d 92 (1974), probate litigation involving issues relating to the testamentary capacity of a decedent. The Court applied the law as written. After reviewing the widespread criticism of dead man’s statutes, the justices urged the Minnesota legislature to give serious consideration to repealing the law. The Court’s opinion is widely credited for laying out the rationale that led to Minnesota repealing the law in 1987.
Rule 617, Conversation with Deceased or Insane Person, now applies to all civil court actions in the state, including probate and estate litigation. The Rule provides:
A witness is not precluded from giving evidence of or concerning any conversations with, or admissions of a deceased or insane party or person merely because the witness is a party to the action or a person interested in the event thereof.
The Committee Comment to the new rule noted that the repealed law was “subject to all the problems and potential for injustice which are inherent in a rule which excludes otherwise admissible evidence.” The comment further explained: “The evidentiary rule represents a considered opinion that the protection which the statute had offered to decedents' estates was not sufficient to justify the problems it created for honest litigants with legitimate claims.” The comment concluded by recognizing that the Supreme Court’s opinion in the Lea case provided much of the rationale for abolishment of the statute.
Under this rule, which currently applies to all Minnesota civil actions including probate litigation, testimony previously prohibited by the dead man’s rule is now permitted, if it meets the other evidentiary requirements for admission. However, the evidence is subject to the normal methods employed by litigation attorneys to test truthfulness and establish the weight to be given to the testimony. Rejection of the exclusion does not mean that interested witnesses are free to fabricate and falsify evidence or perjure themselves in a court action.
My practice at the Dave Burns Law Office includes years of experience as a probate court litigation attorney. I work with family members, other beneficiaries of an estate, and personal representatives facing probate or estate disputes. If you would like to discuss a situation involving possible probate litigation, I invite you to contact me at (612) 677-8351 or by emailing email@example.com. I welcome inquiries from clients and referring attorneys throughout the State of Minnesota and am available to meet with clients in both Minneapolis and St. Paul.
The Dave Burns Law Office hopes you find this article helpful. But please do not rely on it as legal advice. The law changes regularly and the outcome of any legal matter depends on its unique circumstances. View full disclaimer