Evidence Legal Topics

Dead Man Talking

ThinkstockPhotos-480320363When there’s a suit involving someone’s estate, can you get into evidence a hearsay statement by the person who has died? If the statement falls under this exception to the hearsay rule, the dead person may have his or her say in court.

A statement by a decedent is admissible as an exception to the hearsay rule if the statement meets both of the following criteria (Evid C §1261(a)):

  1. It’s offered for or against any party in an action on a claim or demand against the decedent’s estate; and
  2. It was made on the decedent’s personal knowledge at a time when the matter had been recently perceived by the decedent and while his or her recollection was clear.

But even if both of these criteria are met, you still have to show that the statement is trustworthy. Evid C §1261(b).

The hearsay exception for a decedent’s statement offered in an action on a claim or demand against his or her estate was designed to balance the scales between a plaintiff and a defendant-decedent’s estate after repeal of the “dead man statute,” which prevented parties and their assignors from testifying against an executor or administrator on a claim or demand against a deceased person’s estate as to any matter occurring before the decedent’s death. Comments to Evid C §1261.

Since repeal, a plaintiff who sues on a claim against a decedent’s estate is competent to testify to any transaction or occurrence that the plaintiff had with the decedent before the decedent’s death. Evidence Code §1261 permits the administrator to introduce the decedent’s version of his or her transaction or occurrence with the plaintiff through the decedent’s hearsay statements. The plaintiff doesn’t need this exception because he or she may offer the decedent’s statements against the administrator under the hearsay exception created by Evid C §1224 for a statement of a declarant whose liability or breach of duty is in issue.

Here’s an example of how this might play out:

Plaintiff P sues X, administrator of B’s estate, for breach of an alleged oral contract. P testifies to her conversations with B, which occurred a month before his death. X calls C, a friend of B, to testify that he talked with B a few weeks before his death and that B said that he had tried to reach an agreement with P, but that he and P never could do so. P makes a hearsay objection to C’s testimony.

Should the objection be overruled? Yes. In this illustration, X, the administrator, offers B’s self-serving hearsay statement against P. Nonetheless, all requirements for the hearsay exception created by Evid C §1261 are satisfied: B had personal knowledge of his own conversations with P, his statement was made shortly after the event observed and while his recollection was clear, and there are no circumstances indicating the statement’s lack of trustworthiness. The fact that B’s hearsay statement is self-serving is no bar to admissibility, because there’s no requirement that B’s statement be disserving or against his or her interest. Estate of Luke (1987) 194 CA3d 1006, 1017.

Get answers to all of your evidence admissibility questions, including helpful illustrations of the rules, in Jefferson’s California Evidence Benchbook (4th ed CJA-CEB).

Check out these other CEBblog™ posts on evidence topics.

© The Regents of the University of California, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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