Chapter 42 - § 42.11 • PERSONS NOT PROTECTED BY DEAD MAN'S STATUTE

• Jurisdiction: Colorado

§ 42.11 • PERSONS NOT PROTECTED BY DEAD MAN'S STATUTE

The following illustrate the situations in which the dead man's statute does not protect the party urging it.

The administrator is not an adverse party in a suit to impress a trust on the corpus of the estate as the result of a breach of contract to make a will since it makes no difference to the administrator who wins and the outcome of the suit will not reduce the estate in his or her hands, but merely determines to whom he or she is accountable. He or she cannot object to testimony by one of the parties.⁷⁵ This case, Risbry v. Swan,⁷⁶ should be read in connection with all dead man's statute cases since it discusses the related issue of who has and does not have standing to raise the bar of the statute. For example, if the representative is considered to be a neutral party, then care should be taken to have an interested party represented at the hearing so that the bar of the statute may be properly raised.

NOTE: The holding in Risbry v. Swan may have, in effect, been reversed by the repeal and reenactment of the dead man's statute in 2002. In Glover v. Innis, 252 P.3d 1204 (Colo. App. 2011), a case applying the 2002 dead man's statute (see § 42.21), the court held that a personal representative has standing to assert an objection based on the dead man's statute. Thus, it may no longer be necessary for an interested party to be present at the hearing for the purpose of raising the statutory bar.

In a suit in which an issue was the tender of the purchase price of property to the escrow holder of the deed, the president of the escrow holder may testify even though an administrator is a party, since the bank has no direct interest in the outcome.⁷⁷

A person who is sued for conversion pleads that he is acting in a representative capacity. The burden of proof is on him, and there should be a preliminary hearing to determine the facts as to the capacity in which the defendant is acting. The defendant cannot make himself a defendant in a representative capacity merely to keep the plaintiff off the stand.⁷⁸

A contract to make a will was complied with and the will was executed, but thereafter the testator conveyed gratuitously to the defendant, who also was executrix under the will, for the purpose of defeating the will. In a suit to impress a trust on the property by reason of the conveyance contrary to the agreement, the defendant was defending in her personal capacity as grantee under the deed and had no...