Under so-called dead man's statutes, a surviving party who contracted with a deceased party was barred from testifying in an action brought against the deceased party's estate.
Simultaneously, restrictive dead man's statutes have also waned, making near-death contracts less difficult to prove.
(296.) For a modern discussion, see Ed Wallis, An Outdated Form of Evidentiary Law: A Survey of Dead Man's Statutes and a Proposal for Change, 53 CLEV.
1969) (characterizing dead man's statutes as "archaic").
Of the nine remaining jurisdictions with relaxed rules for nuncupative wills, four continue to restrict evidence of a contract via some form of dead man's statute. (301) Among the thirty-two states that have repealed the dead man's statute, only five allow nuncupative wills.
Inheritance scholars have deplored nuncupative wills as "obsolescent and outmoded" (307) at the same time as evidence scholars have condemned the dead man's statute as a "relic." (308) Because the alternative forms of transfer are categorically distinct, the contradiction has gone largely unnoticed.
2d Witnesses [section] 565 (2003 ed.) ("Accordingly, state dead man's statutes are applicable in diversity actions, but not in federal question cases") (footnotes omitted); see also Estate of Aguirre v.
5th DCA 1989), a summary judgment motion in a dead man's statute environment presents a particularly delicate issue, largely because of the specter of a waiver of its protection.
5th DCA 2001), say "no" and have correctly held that "[w]here the inescapable inference from an interested party would show that the decedent agreed to a material term or condition which is missing from a written contract, the testimony would violate the Deadman's Statute." (additional citations omitted) Similarly, whether written, oral, or partially both, where writings and independent witnesses' testimony may establish some, but not all, of the material terms of a contract with the decedent, the dead man's statute applies to bar same.
There, it was correctly concluded that the mere use of an interested person's deposition in such a context does not waive the dead man's statute "for all purposes as to all matters contained in the deposition." Id.
Does the circumstance of the decedent having been deposed allow an interested person to affirmatively use the deposition against the decedent's estate following the death of the decedent--and wouldn't such allowance entirely vitiate the dead man's statute? Surprisingly, almost 30 years ago the Third District Court in Cohen v.
I do not think that RCP 1.330(a)(3) has the effect of abolishing the Dead Man's Statute ([section] 90.05, Fla.