New York’s Dead Man’s Statute: Some Preliminary Considerations

New York is in the minority of states that still have a Dead Man’s Statute.  New York’s Dead Man’s Statute, also known as CPLR § 4519, came into law in 1851.  The legislative concern at the time was over perjury:  that self-interest would prevail when a person testified in a civil matter involving conversations with a now-deceased person where the witness had a pecuniary interest in the outcome of the case.  That concern persists today and is particularly evident in the area of Wills and trusts.

New York’s Dead Man’s Statute codified what had been common law practice since the time of Elizabeth I of England.   It is intended to protect the decedent’s estate against claims of conversations or interactions that cannot be verified.  What a Dead Man’s Statute does is make a witness legally incompetent to testify about conversations that the witness had with a deceased person in a case where s/he could benefit financially if the trier of fact found that evidence to be materially determinative.   Since the deceased/legally incompetent person’s lips are forever sealed, so must the lips of the other conversant with respect to the matter in contest.  In New York, the statute has been invoked in cases involving such matters as bequests in Wills; trust provisions;  requests for specific performance; and lack of testamentary capacity. 

There are also interesting cases where the Dead Man’s Statute intersects with the competency of a witness exception of the Federal Rules of Evidence (FRE) Rule 601, at which point the Dead Man’s Statute supplies the state law .  At times, the Dead Man’s Statute serves as a statutory exception to the hearsay rule.  At other times, the hearsay exception in the Federal Rules trumps the Dead Man’s Statute.  Establishing pedigree for either the witness or the decedent in a Wills contest is one such example (FRE 804(b)(4)).

In New York, there are three exceptions to the Dead Man’s Statute:

  1. in a tort action for negligence involving a car, boat, or plane, an interested witness can testify to the general facts and results of the accident;
  2. in estate cases where the estate “opens the door” by offering evidence or questioning an interested witness about conversations or transactions with the deceased;  
  3. where the estate of the deceased does not lodge a timely objection during a Wills contest or trial, then the estate waives it right to object based on the Dead Man’s Statute.

The first exception is an important one in vehicular negligence actions because New York does not have a guest statute.  Thus New York’s interest is to allow a New York State domiciliary the right to recover damages against a negligent driver.  The next two exceptions can be triggered during an estate contest, for instance, where a  substantial “gift” is concerned.

In future posts, I will examine specific cases in which the Dead Man’s Statute figured prominently.  Each case presents an interesting set of facts that prepares the stage for the application of the Dead Man’s Statute. 

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