Dead man talking - requiem for summary judgment under Florida's "dead man's" statute.

• Author: Waldman, Glenn J.

The purpose of this article is to assist the probate litigation practitioner through the analytical maze that the "dead man's" statute often presents, particularly during the pretrial phase of the case, and to propose certain changes to the statute and the Rules of Civil Procedure in order to effectuate the purposes of both while resolving a conflict between them. The statute, presently codified at F.S. [section] 90.602(1), provides:

No person interested in an action or proceeding against the personal representative, heir at law, assignee, legatee, devisee, or survivor of a deceased person, or against the assignee, committee, or guardian of a mentally incompetent person, shall be examined as a witness regarding any oral communication between the interested person and the person who is deceased or mentally incompetent at the time of the examination.

The salutary purpose of the statute is to protect a decedent's estate from false and fraudulent claims or defenses that are not independently corroborated by a writing or otherwise proved through a disinterested witness. (1) It does so, generally, by prohibiting "interested persons"--be they plaintiffs or defendants--from testifying about oral communications between the interested person and the decedent. (2)

A plain reading of the statute is not particularly helpful in terms of weighing either the risks or rewards in embarking upon an examination of an interested witness regarding an oral, lifetime exchange with the decedent. While the statute is often viewed as a testimonial privilege of a decedent's estate, it does not, in itself, give guidance to the estate's attorney whether the prohibition applies in the discovery phase of the case (it is not waived merely by taking a deposition of an interested witness), or whether and how it should be raised, without waiving it, to support a summary judgment motion.

Exceptions, Waiver, and Summary Judgment Motions

Prior to assessing whether to utilize some, or all, preserved testimony of a decedent or of an interested person in the pursuit of an affirmative or defensive summary judgment, an attorney must first determine whether the statute applies to the particular case. The exceptions to application of the statute are wide-ranging:

* It does not apply to testimony by an interested person regarding written transactions or written communications with the decedent. (3)

* It does not apply to testimony regarding nonverbal conduct, such as execution, delivery, and negotiation of a contract. (4)

* It does not create immunity from testifying in favor of a personal representative or a devisee having knowledge of the alleged oral communication. (5)

* It does not apply to actions against corporations based on standard corporate arrangements made by a deceased corporate agent. (6)

* It does not apply to mixed actions against corporations and decedents' estates where the action is said to be primarily one against the corporate entity for breach of an agreement. (7)

* It does not apply in tort actions. (8)

* It does not apply in federal question cases even where the forum state has such a statute. (9)

Even where it is determined to apply, as noted by the Fifth District Court in Polk v. Crittenden, 537 So. 2d 156 (Fla. 5th DCA 1989), a summary judgment motion in a dead man's statute environment presents a particularly delicate issue, largely because of the specter of a waiver of its protection. In Polk, the court wrote, id. at 158, that: Perhaps because the Dead Man's Statute has in many cases served to bar relevant testimony and thereby has thwarted the full hearing of a matter, the courts have seized upon the waiver provisions of the statute and have given it a broad interpretation. For example, if the personal representative waives the statute in one phase of the litigation, it is deemed waived for the remainder. Briscoe v. Florida National Bank of Miami, 394 So. 2d 492 (Fla. 3d DCA 1981); Boling v. Barnes, 216 So. 2d 804 (Fla. 2d DCA 1968), cert. discharged, 225 So. 2d 510 (Fla. 1969). A more difficult question, presented in this case, is the extent of the waiver where a deposition of the barred witness is not only taken, but filed in the proceeding.

Typically, the interested person's deposition is filed, as noted in Polk, in connection with a plaintiff's opposition to a decedent's estate's motion for summary judgment, or for some other evidentiary purpose. Some courts have held that so long as a waiver of the statute at trial is possible, it is premature to preclude testimony and/or to dismiss actions upon summary judgment or otherwise. Wallace v. Gilbert, 250 So. 2d 14, 15 (Fla. 2d DCA 1971) ("The Deadman's Statute can be waived." "While anticipation of evidentiary problems which might arise at trial is admirable, counsel should have opportunity for argument and should in all events retain their rights to introduce admissible evidence.").

Is it fair, though, to deny an estate its well-grounded summary judgment merely because its counsel may later waive it inadvertently? (10) Recent appellate decisions, such as Bauerle v. Brush, 820 So. 2d 310, 314 (Fla. 5th DCA 2001), say "no" and have correctly held that "[w]here the inescapable inference from an interested party would show that the decedent agreed to a material term or condition which is missing from a written contract, the testimony would violate the Deadman's Statute." (additional citations omitted) Similarly, whether written, oral, or partially both, where writings and independent witnesses' testimony may establish some, but not all, of the material terms of a contract with the decedent, the dead man's statute applies to bar same. Tarr v. Cooper, 708 So. 2d 614 (Fla. 3d DCA 1998) (summary judgment against plaintiff was appropriate in action against deceased party based on oral contract where writings and independent witness established some, but not all, of the material terms); (11) Fabian v. Ryan, 486 So. 2d 10 (Fla. 3d DCA 1986) (appellant's proffered testimony concerning details of option to buy excludable under dead man's statute where inescapable inference from testimony was that decedent made...