The 2013 Revised Colorado Dead Man's Statute
| Publication year | 2013 |
| Pages | 45 |
| Citation | Vol. 42 No. 9 Pg. 45 |
By Herb E. Tucker, Marc Darling.
Articles Trust and Estate Law
Trust and Estate Law articles are sponsored by the CBA Trust and Estate Section. Topics include trust and estate planning and administration, probate litigation, guardianships and conservatorships, and tax planning.
Coordinating Editors David W. Kirch, of David W. Kirch, P. C, Aurora—(303) 671-7726, dkirch@dwkpc.net; Constance D. Smith, of Fairfield and Woods P.C.—(303) 894-4474, csmith@fwlaw.com
About the Authors Herb E. Tucker and Marc Darling are shareholders with the Denver law firm of Wade Ash Woods Hill & Farley, P.C., where they specialize in estate and trust administration, with an emphasis in probate and trust litigation. They are members of the CBA and are actively involved in the CBA Trust and Estate Section and in many subcommittees. They have lectured locally and nationally at CLE programs and have written numerous articles on probate and trust litigation. The authors co-chair the Trust and Estate Law Section subcommittee that evaluated Colorado's Dead Man's Statute and proposed the recommendations for the enactment of a new statute—htucker@wadeash. com, mdarling@wadeash. com.
This article discusses the problems confronted by lawyers and judges in the last ten years interpreting and applying the 2002 Dead Man’s Statute and how those problems have been addressed in the 2013 revised Dead Man’s Statute.
This article discusses the 2013 revisions to the Colorado Dead Man’s Statute that went into effect on August 7, 2013 as a result of the General Assembly passing Senate Bill 13-077. The new statute is included as an appendix to this article. The statute applies retroactively to all pending cases, unless the court determines it is in the interest of justice that the former statute apply.[1]
The last major overhaul to the Colorado Dead Man’s Statute became effective July 1, 2002.[2] At that time, the Colorado Legislature directed the Trust and Estate Law Section of the CBA to simplify the statute, which had become overly complicated by nine recognized exceptions to the rule. The 2002 revisions incorporated the beneficial aspects of modern statutes from other states, while still addressing the concerns of Colorado’s courts and the legislature that the old statute was too long and complicated.[3]
Problems With the 2002 Statute
Colorado practitioners, through courtroom experience, have had an opportunity over the last ten years to identify some of the problems they and the courts have had interpreting the 2002 statute. As a result, the Dead Man’s Statute subcommittee revised the 2002 statute to remove some of the stumbling blocks to its interpretation and to provide greater clarification and guidance to facilitate the analysis courts must make.
Proceeding Included Equitable Actions
An argument has arisen that an equitable action is not a civil action for purposes of the statute. The subcommittee concluded that the argument is weak and esoteric; however, instead of devoting considerable energy to that distinction, the subcommittee simply has added the words "other proceeding" to section (1), because "proceeding" is defined in the Colorado Probate Code to include equitable actions.[4]
By or Against a Person Incapable of Testifying
A number of difficulties have arisen from the "by or against" a person incapable of testifying language in section (1). For example, in a breach of fiduciary duty action and in a trustee removal action, arguments were made that the deceased settlor’s uncorroborated and contrary verbal wishes or directions were fully admissible (and not subject to the statute). The case did not involve an action by or against a person incapable of testifying. The subcommittee originally had adopted that particular phrase from a different state’s statute, but on revisiting the language saw no reason to retain the phraseology that was creating the problems. Accordingly, the subcommittee has deleted it.
Elimination of the Requirement That Corroborating Evidence be Independent
The use of the word "independent" in subsection (1)(b) was intended to reinforce the trustworthy nature of the corroboration necessary to allow a party or a person in interest with a party to testify to the statement; that is, the corroboration had to come from any other competent witness or from trustworthy documentary evidence. However, in practice, courts construed "independent" as a separate and additional element that had to exist for the corroborative evidence to come in, even if the evidence was otherwise trustworthy. For example, an argument could be made that a party’s contemporaneous notes reflecting conversations with the decedent cannot be used to corroborate his testimony, because the notes are not independent.
The subcommittee concluded that although independence is one way in which a statement can be trustworthy, it is not the only or necessarily the best way in which testimony can be trustworthy; hence, it should not be a required element for the statement to be admissible. Therefore, the subcommittee deleted "independent" in subsection (1) (b) and clarified the nature of the corroboration required in new subsection (3)(c), and that what needs to be corroborated is the proposed witness’s testimony, not the statement of the person who is incapable of testifying .[5]
It has been suggested to the subcommittee that there is...
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