Chapter 42 - § 42.15 • EXAMPLES OF EXCEPTIONS TO THE GENERAL RULE IN DEAD MAN'S STATUTE

• Jurisdiction: Colorado

§ 42.15 • EXAMPLES OF EXCEPTIONS TO THE GENERAL RULE IN DEAD MAN'S STATUTE

The following are summaries of some cases involving the nine exceptions to the general rule in the dead man's statute (see § 42.4).

Exception 1) Anyone may testify as to matters occurring after the death of the decedent.¹⁰⁴
Exception 2) When the decedent's attorney was present at a conversation regarding a separation agreement at which the decedent and the claimant also were present and the attorney testifies as to certain matters, the claimant also may testify.¹⁰⁵
Exception 3) After testimony has been given by an adverse party, an otherwise incompetent witness becomes competent.¹⁰⁶
Exception 4) When a person who is neither a party nor a person having a direct interest in the outcome of the action, and not an agent of the decedent, testifies as to a letter admitting the existence of a debt, the writer of the letter, who is interested in the outcome of the suit, may testify as to the circumstances surrounding the writing and mailing of the letter.¹⁰⁷
Exception 5) Where there was a former trial of the action at which a decedent had testified and his testimony was read into the record by his representative, the adverse parties may testify with regard to the same matters, if relevant,¹⁰⁸ but the adverse party may not introduce the testimony of the decedent at the former trial so as to make the adverse party competent to testify.¹⁰⁹
Exception 6) When there is a conversation or admission heard by an adverse party, and a member of decedent's family over 16 years of age, or an heir, legatee, or devisee of his or hers, is also present and is over that age, the adverse party may testify to the conversation or admission, but only if the member of the family, heir, legatee, or devisee is available to testify.¹¹⁰ A stepdaughter living with her husband in the home of the decedent is not a member of the family within the intent of the exception. The word "family" means persons living with the decedent who would be his or her heirs.¹¹¹ Nor is a conversation with the decedent by his or her heir in the presence of the executor named in the will within the intent of the exception when the executor is neither a member of the family nor an heir.¹¹² A person fitting the description as a member of the family will not be so treated if he or she actually is hostile to the estate and his or her pecuniary interest is that the action taken by the representative should fail.¹¹³ The pecuniary interest of

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