The Dead Man’s Statute was provided for in Section 23, Rule 130 of the 1989 Rules on Evidence:
“SEC. 23. Disqualification by reason of death … of adverse party. — Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator or other representative of a deceased person … upon a claim or demand against the estate of such deceased person … cannot testify as to any matter of fact occurring before the death of such deceased person….”
In fine, the statute bars the claimant against the estate of a decedent from testifying on an ante-mortem fact. The rule has been roundly criticized because it is based on the unfounded assumption that survivors are dishonest and because injustice would result to the survivor who had a just claim (ANTONIO R. BAUTISTA, BASIC EVIDENCE 57-58 [2004 ed.]). The drafters of the 2019 Rules on Evidence were persuaded by these criticisms and abolished the Dead Man’s Statute by deleting it from the rules.[1]
Hence, a claimant against the estate of a deceased person may now testify regarding an ante-mortem fact. However, to minimize the danger of injustice to the decedent’s estate, the framers of the 2019 Rules added a hearsay exception under Section 39 of Rule 130 for statements of the decedent where an action or a claim is brought against the decedent’s estate.
“Sec. 39. Statement of decedent… — In an action[2] against an executor or administrator or other representative of a deceased person … upon a claim or demand against the estate of such deceased person …, where a party or assignor of a party or a person in whose behalf a case is prosecuted testifies on a matter of fact occurring before the death of the deceased person …, any statement of the deceased … may be received in evidence if the statement was made upon the personal knowledge of the deceased … at a time when the matter had been recently perceived by him or her and while his or her recollection was clear. Such statement, however, is inadmissible if made under circumstances indicating its lack of trustworthiness. (23a)”
This section is adopted, with modifications, from Section 1261 of the California Evidence Code which provides that:
“(a) Evidence of a statement is not made inadmissible by the hearsay rule 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.
“(b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness.”
Like Section 1261 of the California Evidence Code, the hearsay exception under Section 39 of Rule 130 is triggered by the filing of an action upon a claim or demand against the estate of a deceased declarant. The exception does not apply to the case where it is the estate which brings the action.
May a claimant offer in evidence the decedent’s statements?
An interesting question is whether the hearsay exception covers the claimant’s evidence of the decedent’s statements.
The text of Section 1261(a) of the California Evidence Code does not distinguish regarding the offeror of the statement. The offeror may be the claimant or the estate against which the claim is made.
Compare this with Section 39 of Rule 130. A perusal of this section indicates that for the exception to apply, the statement — at least initially – must be offered by the estate of the deceased. Hence, the hearsay exception does not cover the situation where it is the claimant who introduces the decedent’s statement as part of the evidence-in-chief. This does not mean that the claimant may not offer in evidence the decedent’s statement. In not a few cases, such statements would be independently relevant or would be covered by another hearsay exception such as declarations against interest or even the residual exception.[3]
However, once the estate introduces the statement of the deceased, the claimant should also be allowed to introduce a decedent’s statement in rebuttal pursuant to the hearsay exception.
The hearsay exception is triggered when the claimant testifies on an ante-mortem fact
Section 39 of Rule 130 adds a requirement not found in Section 1261 of the California Evidence Code for the hearsay exception to come into play: the party or assignor of a party or a person in whose behalf a case is prosecuted should testify on an ante-mortem fact. This is illustrated by the following hypothetical.
Q Vivo filed with the probate court a money claim against the estate of Dedo. The money claim is supported by a promissory note executed by Dedo in favor of Vivo. The administrator of Dedo’s estate offers the testimony of Testigo who will testify that Dedo told him that he (Dedo) had fully paid the promissory note. Is Dedo’s ante-mortem statement admissible?
A No. The hearsay exception under Section 39 of Rule 130 will come into play only if the claimant will testify on an ante-mortem fact. Here, Vivo merely presented the promissory note but did not testify on any ante-mortem fact. Hence, Testigo’s testimony relates to hearsay not covered by the exception and is thus inadmissible.[4]
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[1] In the U.S., the drafters of the Federal Rules of Evidence intended to abolish the Dead Man’s Statute by not including it in the rules, but Congress added the second sentence of Rule 601 specifically to ensure that state dead man statutes would operate in any federal civil case governed by state substantive law (DAVID SKLANSKY & ANDREA ROTH, EVIDENCE: CASES, COMMENTARY & PROBLEMS 469 [5th ed., 2020]).
[2] Although the provision uses the word “action,” it should be read as covering not only an action against the executor or administrator under Rule 87 but also the filing of a money claim against the estate of a decedent under Rule 86. This can be gleaned from the phrase “upon a claim or demand against the estate of such deceased person.”
[3] Huff v. White Motor Corp., 609 F.2d 286 (7th Cir. 1979). The decedent’s statements may not be considered as admissions since a dead person cannot be a party to a case.
[4] Note that the testimony would be covered by the hearsay exception in Section 1261 of the California Evidence Code.
This is very informative and helpful. Thank you for this!
This is very informative and helpful. Thank you so much!