Dead Man or Dead Letter: Arizona Notes Discretionary Nature of State’s Dead Man’s Statute
Dead Man’s Statutes generally preclude interested parties from testifying about any communication, transaction, or promise made to them by a now deceased or incapacitated person when the testimony would go against the decedent’s estate. The theory behind these statutes is that the interested person has reason to fabricate his testimony and the deceased/incapacitated person does not have the ability to dispute the testimony and protect his estate from false claims. Thus, for instance, a person who sought to testify that a now deceased individual promised to give him his car would not be allowed to do so because of the fear that his testimony would consist of perjury.
Most states have gotten rid of their Dead Man’s Statutes, but, as is made clear by In re Estate of Smith, 2014 WL 47378 (Ariz.App. Div. 1 2014), Arizona still has such a statute…but it is discretionary.
Smith was a probate case to administer the Estate of Dr. T. Marie Smith. After the petitioner, the personal representative of Dr. Smith’s estate, was dissatisfied with the probate of the decdent’s will, he appealed, claiming that the lower court committed evidentiary error. Specifically, the petitioner claimed that
the court erred when it reversed its original evidentiary rulings regarding testimony about statements Dr. Smith made in connection with the A–Frame property. At the trial, the parties contested whether the A–Frame property was owned by Appellant as his separate property or owned by Appellant and Dr. Smith as their joint property. During the trial, the Estate/Trust offered testimony about statements Dr. Smith made about what would happen to the A–Frame property. Appellant objected to the testimony on the ground that it was inadmissible hearsay and that it was barred by the Dead Man’s Statute.
In addressing the petitioner’s appeal, the Court of Appeals of Arizona first found that Dr. Smith’s statements concerning the A-Frame property were admissible under the state of mind hearsay exception contained in Arizona Rule of Evidence 803(3).
Then, the court noted that Arizona’s Dead Man’s Statute provides that “neither party shall be allowed to testify against the other as to any transaction with or statement by the testator…unless called to testify thereto by the opposite party, or required to testify thereto by the court.” A.R.S. § 12–2251.
After noting that Arizona’s Dead Man’s Statute covered testimony concerning Dr. Smith’s statements, the court then concluded as follows:
[A]lthough “the general incompetency imposed by this statute seems to have only two narrow exceptions, the words ‘required to testify thereto by the court’ have been given broader meaning than they might initially connote. Those words have long been interpreted to make the application of the statute discretionary.”…
The court acted within its discretion in permitting Petitioner to testify about Dr. Smith’s statements regarding the A–Frame property.
And…that’s it. I won’t dispute the court’s conclusion, but it would have been nice for the Court of Appeals of Arizona to explain why the lower court’s decision to allow the disputed testimony was a provident exercise of its discretion.
-CM