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What is the Dead Man’s Statute?

When someone passes away, he or she typically has the estate in order by creating a will or trust and designating an executor to oversee the dispersal of assets to named beneficiaries, ensuring a smooth process during a time of grief. However, even the wills and trusts that seem cut and dry can face legal challenges to parties claiming to have a stake in the estate and are rightfully entitled to certain assets.


Fortunately, New York and other states have laws on the books known as “dead man’s statutes” that help to exclude testimony concerning conversations between the deceased and the individual challenging the estate. The main reason to exclude such conversations as evidence from probate proceedings is to prevent purgery and the introduction of evidence that cannot otherwise be verified.


While not limited to cases involving trusts and estates, New York Surrogate Courts often find themselves hearing arguments involving the dead man’s statute. There are three-exceptions to the exclusion of testimony by interested parties under New York law. These exceptions include:


  • Tort claims involving motor vehicles and boats where the interested party (for example, the plaintiff) may testify to facts about the incident
  • Estate claims where one party “opens the door” by questioning the interested party during the discovery process about such conversations with the deceased
  • Failure by the estate to raise timely objections to the interested party’s introduction of conversations with the deceased


Under New York estate laws, the interested party has the burden of proof to proving he or she has a legitimate claim to assets in the estate and must provide evidence other than what the deceased may or may not have said while alive. Courts tend to take the deceased’s intentions very seriously and have no interest in moderating a case of “he said, he said” over who receives what in an estate.


For example, the deceased’s will may leave his or her home to sons or daughters but an “interested party” may challenge the estate claiming the deceased actually gifted or otherwise promised the asset to the individual. By excluding conversations between the interested party and the deceased, the court gives deference to the language of the last will and testament and forces the interested party to show proper evidence of claims to the asset.


However, if the alleged conversation in this example took place in front of a third-party without an interest or claim to the estate, this third party may be called upon to testify to the details of the exchange. For these reasons and many others, it is vital for individuals to draw up a proper last will and testament or create a trust to disperse assets upon his or her passing to prevent the delay dispersal.


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