[WSBAPT] Dead Mans Statute

Tue Nov 12 14:00:02 PST 2019

Bryce--
RCW 5.50.050<https://app.leg.wa.gov/RCW/default.aspx?cite=5.50.050> doesn't have subsections and doesn't appear relevant so I'm guessing that's a typo--but RCW 5.60.030<https://app.leg.wa.gov/RCW/default.aspx?cite=5.60.030>, Dead Man's Statute, also doesn't have subsections.

For what it's worth--If the roommate of the decedent is trying to claim an interest in the property as a defense against ejectment, that's clearly prohibited under RCW 5.60.030. The roommate is (1) an interested party who is directly affected by the judgment of the court in the ejectment action, (2) testifying against the Estate's interest, concerning (3) a transaction with the decedent (that is, I paid money to decedent), or a statement of the decedent (if he's saying that the decedent acknowledged receiving a payment).

I just started pulling together authorities for a case--here are my notes so far.

The statute "excludes testimony offered by interested persons whose interests or claims are adverse to the decedent regarding transactions with the decedent or statements made to him or her by the deceased."
                Wildman v. Taylor, 46 Wn.App. 546, 548-549, 731 P.2d 541 (1987)
                Hampton v. Gilleland, 61 Wn.2d 537, 542, 379 P.2d 194 (1963)

The purpose of the statute is to prevent interested parties from giving self-serving testimony about conversations or transactions with the decedent.
                O'Connor v. Slatter, 48 Wash. 493, 93 P. 1078 (1908)
                McGugart v. Brumback, 77 Wash.2d 441, 444, 463 P.2d 140 (1969)
                Wildman v. Taylor, 46 Wn.App. 546, 549, 731 P.2d 541 (1987)

                Also, the statute renders the interested litigant or witness incompetent to testify against the estate about either a transaction with the deceased or a statement made to him by the deceased. Comment, The Deadman's Statute in Washington, 15 Gonz.L.Rev. 501, 506 (1980).
Wildman v. Taylor, 46 Wn.App. 546, 549, 731 P.2d 541 (1987).

A "party in interest" prohibited from testifying is one who would gain or lose by the action in question.
                In re Estate of Tate, 32 Wash.2d 252, 201 P.2d 182 (1948)
                Lappin v. Lucurell, 13 Wash.App. 277, 292, 534 P.2d 1038 (1975)
                Wildman v. Taylor, 46 Wn.App. 546, 549, 731 P.2d 541 (1987)

"Transaction" under the deadman's statute means doing or performing some business or management of any affair.
                In re Estate of Shaughnessy, 97 Wash.2d 652, 656, 648 P.2d 427 (1982)
                Wildman v. Taylor, 46 Wn.App. 546, 549, 731 P.2d 541 (1987)

The test of a transaction with a decedent is whether the decedent, if living, could contradict the witness of his own knowledge.
                In re Estate of Shaughnessy, 97 Wash.2d 652, 656, 648 P.2d 427 (1982)
                King v. Clodfelter, 10 Wash.App. 514, 516, 518 P.2d 206 (1974)
                Wildman v. Taylor, 46 Wn.App. 546, 549, 731 P.2d 541 (1987)

                One of the major purposes of this legislative enactment is to give protection to the writings and documents of the decedent or persons claiming thereunder, so that decedent's purposes in making a conveyance in writing will not be defeated by parole description of his acts and purposes after his death.
                ...
                Thus, the statute serves to protect the decedent and those who take or claim under him by virtue of his writings. Indeed, the decedent and his successors by written instrument are frequently described in the authorities as 'protected persons,' and this designation is emphasized again and again in determining if there has been a waiver of the statute by the introduction of evidence by or on behalf of the protected party. 97 C.J.S. Witnesses § 242 et seq.; 58 Am.Jur., Witnesses §§ 360, 361.
Hampton v. Gilleland, 61 Wn.2d 537, 543, 379 P.2d 194 (1963). Quoted as above by Wildman v. Taylor, 46 Wn.App. 546, 552-553, 731 P.2d 541 (1987).

The statute is inapplicable to the introduction of written documentation, executed by the deceased, of a transaction or statement by the deceased. Wildman v. Taylor, 46 Wn.App. 546, 553, 731 P.2d 541 (1987). An interested party remains prohibited from testifying about the meaning of the writing. Id. However, if an adequate foundation is laid, an interested party may testify about related circumstances, such as confirming that a letter was received, and may testify to identify the decedent's signature. Id., citing Slavin v. Ackman, 119 Wash. 48, 50, 204 P. 816 (daughter competent to testify as to receipt of letter from her deceased mother promising to convey land her daughter); Jewett v. Budwick, 145 Wash. 405, 260 P. 247 (1927) (identification of a deceased's signature was not prohibited by the statute).

                A statement by [an interested party] of his own feelings or impressions does not come within the ban of [the statute]. Jacobs v. Brock, 73 Wn.2d 234, 237-238, 437 P.2d 920 (1968) (in an action for compensation for services to deceased, one who rendered services permitted to explain that the reason he did not bill decedent for services was "I was always given the impression we were getting the lake property for looking after him.").
Wildman v. Taylor, 46 Wn.App. 546, 554, 731 P.2d 541 (1987).

                McGugart v. Brumback, 77 Wash.2d 441, 449, 463 P.2d 140 (1969), held the party protected by the deadman's statute does not waive the bar of the deadman's statute by taking written interrogatories unless the protected party waives the statute's protection by introducing the evidence at trial.
                ....
                The rationale of the court was that the interrogatories are a means of discovery which may not be intended to be used as evidence and that all parties have the right to use these devices, which are essential to a fair trial. McGugart, at 445, 463 P.2d 140. To hold that the taking of a deposition constituted waiver of the deadman's statute would force the decedent's representative to choose between the protections of the deadman's statute or the benefit of the discovery processes. McGugart, at 446, 463 P.2d 140.
Wildman v. Taylor, 46 Wn.App. 546, 555-556, 731 P.2d 541 (1987).

The bar is to testimony by the witness against the estate; testimony that is against the witness's own self-interest is not barred. See In re Estate of Miller, 134 Wn.App. 885, 143 P.3d 315 (2006) (testimony of decedent's daughter tending to show that decedent had received money from her mother as a loan rather than a gift, having the effect of reducing witness's share of her father's estate, was not self-serving and so was not barred).

The witness is also barred from attempting to testify indirectly about a transaction or statement, to create an inference as to what did or did not transpire between the witness and the deceased. In re Estate of Miller, 134 Wn.App. 885, 891, 143 P.3d 315 (2006), citing Lappin v. Lucurell, 13 Wn.App. 277, 289-91, 534 P.2d 1038 (1975).

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1417 31st Ave South
Seattle WA  98144-3909
phone 206-625-0092
fax 206-625-9040

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Bryce Dille
Sent: Tuesday, November 12, 2019 1:27 PM
To: 'WSBA Probate & Trust Listserv'
Subject: [WSBAPT] Dead Mans Statute

I'm requesting a cite to any  case which applied RCW 5.50.050(2) and could be used to prohibit roommate (roommate married to third party)  of decedent from testifying about cash contributions made to purchase property held in name of decedent in action for ejectment by the estate where roommate claims interest in property based on oral statement that money was paid where there is no documentary proof of the same. Thank you

Bryce H. Dille | Attorney at Law
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