Nov. 2, 2016 – The “Deadman’s Statute” will soon die now that the Wisconsin Supreme Court has approved a petition to repeal this longstanding witness competency rule, which bars “interested witnesses” from testifying about communications or transactions with a person who has since died or is no longer competent to testify about it.
The rationale for Wisconsin’s Deadman’s Statute, codified in 1858, was to protect a decedent’s estate from fraudulent claims by living witnesses with an interest in the estate. Uncle Buck is likely to lie about his prior conversations with dearly departed grandpa, the rationale goes, if Uncle Buck stands to benefit from the untruthful tale.
But what if Uncle Buck is honest?
“The Statute, in preventing a plaintiff from testifying as to any communications he or she may have had with the decedent, discourages him or her from bringing claims if the communication is essential to prove them,” wrote attorney Shawn Stevens in a 1998 Marquette Law Review article.
“For every piece of fraudulent testimony excluded by the Deadman’s Statute, there are a great deal more meritorious claims that are dismissed because of the failure of proof.”
Stevens was calling for repeal almost two decades ago, noting that in its 140-year history, the statute had survived philosophical assaults and constitutional challenges.
But Wisconsin has now parted ways with the Deadman’s Statute, as the supreme court repealed it under its authority to regulate pleading, practice, and procedure.
The 21-member Wisconsin Judicial Council, which studies pleading, practice, and procedure rules and makes recommendations to the court, petitioned for repeal as a part of a larger package of procedural rule changes that are discussed in this article.
Wisconsin in the Minority
The Deadman’s Statute is actually two statutes, Wis. Stat. section 885.16 (transactions with deceased or insane persons) and 885.17 (transactions with deceased agents). The supreme court repealed both of these statutes, effective July 1, 2017.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
For cases pending as of the effective date, circuit court judges will have discretion to decide whether the Deadman’s Statute should apply in the case.
The Wisconsin Judicial Council (Judicial Council), in its petition to repeal the Deadman’s Statute, noted that Wisconsin is among a minority of states that still recognize some version of the rule. A majority have repealed, superceded, or declined to adopt it.
“Today, many believe the archaic rule supports injustice by preventing honest claimants from proving their case, so most states have rejected the Deadman’s Statute,” Judicial Council attorney April Southwick wrote in a supporting memo to the court.
At a public hearing last week, Southwick noted that the Judicial Council sought input from members of the Bar during a comment period and no letters of opposition were filed with the court. Two trust and estate attorneys filed a letter supporting repeal.
Attorney Tom Shriner, a partner at Foley & Lardner and Marquette University Law School’s appointee on the Judicial Council, also appeared at the public hearing. He said the body of law that surrounds the Deadman’s Statute is “very bad.”
“It’s a trap for the unwary. It’s a malpractice trap,” said Shriner, noting the specificity required for an objection to testimony under the Deadman’s Statute. “From the point of view of the rules of evidence, it’s a bad rule and long past its time for revocation.”
Shriner noted that the Judicial Council recommended repeal of the Deadman’s Statute more than 40 years ago when the Judicial Council recommended the adoption of the Federal Rules of Evidence, which do not contain a Deadman’s Statute. The Wisconsin Supreme Court, in 1973, declined to repeal it but provided no reason for retaining it.
“There is no surge of pro-Deadman’s Statute interest in this state, and I think a bad rule that has just gotten worse in the intervening 43 years ought to be repealed,” Shriner said.
The State Bar of Wisconsin’s Board of Governors did not take a position, but Shriner noted that the State Bar has supported repealing the Deadman’s Statute in the past.
Practitioners Note Problems
Jonathan Ingrisano and Jonathan Smies, trust and estate litigators at Godfrey & Kahn S.C., appeared at the public hearing to voice support for the petition and explain the various problems that the Deadman’s Statute creates for law practitioners and clients.
“Almost every probate and trust dispute that we see requires consideration of the Deadman’s Statute, and most require a specific strategy and research on how to apply the statute or how to avoid it,” Ingrisano told the justices.
Ingrisano noted three practical concerns with the Deadman’s Statute. First, a surge in probate and trust litigation is expected as a large intergenerational transfer of wealth, known as the “Great Transfer,” takes place over the course of the next 30 to 40 years.
This will exacerbate problems with the Deadman’s Statute, he said. Substantial research and motion practice on the Deadman’s Statute results in significant litigation expenses, Ingrisano noted, and eliminating it would likely reduce appeals and promote efficiencies.
“If you take it away as a legal issue, you are putting all the cards on the table and allowing an assessment of the evidence just like every other situation involving an interested witness. Credibility determinations are left to the fact-finder,” he said.
Ingrisano said the Deadman’s Statute can be used to bar statements when there’s ambiguity in a will or trust, or when someone claims undue influence or duress. The claimant can’t use those statements to show the decedent was unlawfully influenced.
“But we also see it used to thwart estate defenses to claims related to a decedent’s intent,” he said. “Rather than protecting the estate, which is the stated purpose of the statute, we see preferred beneficiaries unable to defend against serious allegations.”
Ingrisano also said the Deadman’s Statute, if not repealed, could play a role in the rising number of elder abuse cases, since it applies to those deemed incompetent.
“We are going to have folks who are going to be accused of elder abuse in the next 20 to 30 years, and the question of whether they will be able to use self-interested statements in support of their defenses or claims is certainly an issue,” he said.
In repealing the Deadman’s Statutes, a majority of the supreme court also approved the Judicial Council’s request to amend the “general rule of competency,” section 906.01, to remove reference to the Deadman’s Statutes.
Goldman Raises Questions
Jeff Goldman, chair of the trusts and estates practice group at Dewitt Ross & Stevens S.C., also appeared at the public hearing. He’s on the State Bar’s Board of Governors and serves as liaison to the Real Property, Probate and Trust Law (RPPT) Section.
He did not advocate for repealing or retaining the Deadman’s Statute, but to present some issues, including the possibility that trusts and estates litigation, and the costs associated with it, would simply shift to witness bias if no longer the law in Wisconsin.
“As a litigator, if I’m not litigating or doing discovery, or filing motions about the Deadman’s Statute, and I have a bias statute, am I not going to be doing discovery about bias? Am I not going to be arguing to the court about bias?” he said.
Under petition 16-02, the Judicial Council proposed a “bias of witness” rule to codify what is already the common law of Wisconsin. It states that evidence of bias, prejudice, or interest of the witness is admissible to attack the credibility of a witness.
“On balance, maybe there’s a net gain in savings. Maybe it’s a better system without the Deadman’s Statute, but I just don’t know. I can see it both ways,” said Goldman, who also questioned the argument that courts would be more efficient without it.
“Do we now have an influx of cases that are litigated at the trial court level that never would have been before? As a policy issue, one of the questions is whether we are going to have more estate disputes because there is no bar as a deterrent,” he said.
The court considered the issues Goldman raised but ultimately decided to join the majority of states that have laid their Deadman’s Statutes to rest in peace.
“Even when it was adopted in 1858, I think it was referred to as archaic, if I recall the history,” said Justice Ann Walsh Bradley, who made the motion to repeal it. “Thirty-seven states have gotten rid of this as recommended by the ABA, the Uniform Law Commission, and a plethora of others that note it causes more problems than it serves.”
Court Considers Other Proposed Changes
The supreme court declined to repeal another statute, section 885.205, which prohibits college deans and school psychologists from disclosing communications with a student in the course of counseling the student or investigating the student’s conduct.
The Judicial Council included this proposed repeal after the Legislative Reference Bureau raised issues with the statute. The council’s supporting memo noted that the statute is not well known, having been cited once in an unpublished opinion, and appears confusing.
“The conclusion was that the rule lacks a sound reason for its existence,” notes the memo, which questioned why the privilege extends to college deans and not principals.
However, a majority dismissed the proposal, included with petition 16-01. Several justices were concerned that the statute addresses substantive rights or privileges, provinces of the legislature that the court is without authority to change.
Witness Bias Rule
In a separate petition (16-02), the Judicial Council asked the justices to create a “bias of witness” rule previously mentioned, and amend three rules of evidence. However, the court sent the petition back to the Judicial Council to clarify issues identified.
The proposed bias rule says: “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.” In a supporting memo, the Judicial Council said codification reiterates that bias, prejudice, or interest of witness are relevant facts to be considered.
The court sent it back to the Judicial Council, asking whether it should use the term “character for truthfulness” instead of the term “credibility.”
Evidence of Character and Conduct of Witness
The Judicial Council requested an amendment to Wis. Stat. section 906.08(2), relating to “specific instances of conduct.” The current rule states:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's credibility, other than a conviction of a crime or an adjudication of delinquency as provided in s.906.09, may not be proved by extrinsic evidence. They may, however, subject to s.972.11 (2), if probative of truthfulness or untruthfulness and not remote in time, be inquired into on cross-examination of the witness or on cross-examination of a witness who testifies to his or her character for truthfulness or untruthfulness.
The Judicial Council recommended changing the term “credibility” to “character for truthfulness” in line with the rule’s counterpart in the Federal Rules of Evidence.
“Limiting the application of the rule to proof of a witness' character for truthfulness leaves the admissibility of extrinsic evidence offered for other grounds of impeachment (such as contradiction, prior inconsistent statement, bias, and mental capacity) to other rules of more specific applicability,” the Judicial Council wrote in a supporting memo.
The court signaled its acceptance of the proposed change but sent it back to the Judicial Council for more clarification on why it made the intentional decision to retain the term “credibility” in other closely related statutes.
The court had a similar concern with proposed changes to section 906.09, which relates the impeachment by evidence of conviction of crime or adjudication of delinquency. The Judicial Council says the current rule is inconsistent with Wisconsin case law interpreting the rule, which differs substantially from its federal counterpart.
Rule of Completeness
The Judicial Council proposed an amendment Wis. Stat. section 901.07, known as the “rule of completeness,” which says that “when a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the party at the time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.”
Southwick explained that the current rule focuses on “writing,” which has caused confusion regarding whether the rule applies to oral statements. The amended rule would remove the word “writing” and input “recorded or unrecorded” statements, and a comment would note the rule is consistent with case law allowing oral testimony.
But the justices sent the petition back to the Judicial Council, concluding the intent of the rule is not clear enough and may cause even more confusion on what is meant by “recorded and unrecorded statements.” The court asked the council to rework it.