The repeal of Wisconsin’s longstanding Deadman’s Statute – Wis. Stat. section 885.16 – became effective July 1, 2017.1 By doing so, Wisconsin joined the vast majority of states – and the Federal Rules of Evidence – which have either repealed, superseded, or never adopted the rule.
The Deadman’s Statute: Prior Application
The Deadman’s Statute commonly factored into many estate and trust disputes because it rendered a person with a legal interest in the outcome of a particular case “incompetent” to testify regarding a transaction or communication with a deceased person.
A purpose behind the statute in Wisconsin was:
to prevent parties to a transaction from obtaining an unfair advantage over another party who has since died. The lips of the one being sealed by death, the lips of the other are sealed by a rule of law which, though arbitrary, is made necessary to prevent greed and avarice from enabling the survivor to perpetrate a fraud.2
Practically speaking, the Deadman’s Statute also had a chilling effect on interested parties’ claims against or relating to an estate or a decedent, because oftentimes such party’s claim was based solely on his or her own testimony about statements or a transaction with the decedent.
Jeff A. Goldman,
U.W. 2002, is the chair of the Estate and Trust Practice Group at DeWitt Ross & Stevens, Madison. His practice focuses on trusts, estates, fiduciary litigation and administration, estate planning, and probate.
Arguments in Favor of Repeal
One common rationale against the Deadman’s Statute was that it favored the interests of the dead over the living:
Are not the estates of living men endangered daily by the present rule which bars from proof so many honest claims? Can it be more important to save dead men’s estates from false claims, than to save living men's estates from loss by lack of proof?3
Other rationales were that it added to the time and expense of litigation, and was sometimes applied inconsistently by courts. Because of its potentially significant effect on evidence that could be presented and admitted at trial, it was frequently litigated in pre-trial motions and objections at trial.
Where Does Repeal Leave Us?
In the absence of the Deadman’s Statute, persons with a legal interest in the outcome of a particular case are no longer incompetent to testify as a witness to transactions or communications with a decedent.
The check on interested persons’ ability to testify is that another party can present evidence of the witness’s bias. This can be done through the long existing common-law bias rule.4 Very soon, it can also be done through the newly-created Wis. Stat. section 901.06 (effective Jan. 1, 2018):5
906.16. Bias of witness. For the purpose of attacking the credibility of a witness, evidence of bias, prejudice, or interest of the witness for or against any party to the case is admissible.
For attorneys, this presents a new facet to preparing and analyzing a typical estate or trust dispute. It may affect available causes of action, strategy, written discovery, examination, and cross-examination of witnesses at deposition and trial, and objections.
Instead of relying on the all-or-nothing effect of the Deadman’s Statute on transactions or communications with the decedent, attorneys seeking to limit the effectiveness of a particular witness’s testimony will now need to develop facts and evidence relating to bias, prejudice, interest, and other motives to testify falsely.
Why It’s Only ‘Mostly’ Dead
Although the repeal of the Deadman’s Statute was effective as of July 1, 2017, the statute may still apply to proceedings commenced prior to that date:
this order shall apply to court proceedings commenced after the effective date of this rule and to any proceedings within a court proceeding then pending, except insofar as, in the opinion of the circuit court, application of the rule change would not be feasible or would work injustice, in which event the former rule applies.6
In limited circumstances relating to proceedings that were pending as of July 1, 2017, it is possible that the Deadman’s Statute may still apply.
1 Supreme Court Order No. 16-01 (Feb. 21, 2017), 2017 WI 13.
2 In re Repush’s Will, 257 Wis. 528, 531-32, 44 N.W.2d 240 (1950).
3 Long v. Molay, 46 Wis.2d 450, 458, 175 N.W.2d 254 (1970) (citation omitted).
4 E.g., State v. Williamson, 84 Wis. 2d 370, 383, 267 N.W.2d 337, 343 (1978) (“The bias or prejudice of a witness is not a collateral issue and extrinsic evidence may be used to prove that a witness has a motive to testify falsely. … The extent of the inquiry with respect to bias is a matter within the discretion of the trial court.”).
5 Following a public hearing on Supreme Court Petition 16-02A on Sept. 25, 2017, on Oct. 11, 2017, the Wisconsin Supreme Court entered an order creating section 901.16, among other things (a copy of the order is available on wicourts.gov).
6 Supreme Court Order No. 16-01, at 3 (emphasis added).