Hearsay Evidence in Trust and Estate Litigation

• Publication year: 2005
• Author: By Darrell Thompson, Esq.

HEARSAY EVIDENCE IN TRUST AND ESTATE LITIGATION

By Darrell Thompson, Esq.^*

I. INTRODUCTION

Litigation of trust and estate matters more often than not presents difficult evidentiary issues. These generally arise because of illness, mental incapacity or death. Consequently, it becomes necessary to rely on statements recalled by percipient witnesses on the critical issue of testamentary intent. Such statements are hearsay if offered to prove the truth of the matter asserted.¹ They include oral or written verbal expressions, as well as nonverbal conduct intended as a substitute for oral or written expression.²

Courts have traditionally excluded hearsay because of its perceived unreliability, and the inability of the trier of fact to assess the credibility of the witness under direct and cross-examination. In trust and estate matters, witnesses may have intentionally been told different things by the declarant, who was motivated to avoid harassment, confrontation or the fear of offending a loved one. Recollections often conflict and may be influenced by biased perception or rationalized to protect an economic interest. Despite obvious concerns, hearsay is often the only evidence available regarding intent, capacity or undue influence.

How can one avoid adverse evidentiary rulings regarding the most salient questions of proof in trust and estate litigation? This article attempts to answer this question by examining the exceptions to the hearsay rule and how these can be employed. Keep in mind that the exceptions to the hearsay rule discussed in this article allow for admission only if the statement or conduct demonstrates the requisite indicia of reliability and trustworthiness. In other words, can equity be assured because the context of the out-of-court statement guarantees its veracity? It is important to note that a statement that falls within one of the exceptions is not inadmissible under the hearsay rule, but may be inadmissible on other grounds.³ Remember also that an out-of-court statement may be deemed to be non-hearsay, thus allowing its admission. This aspect of the law is beyond the scope of this article and will not be reviewed.

In preparing this article, numerous trust and estate cases were reviewed.⁴ This article will not provide a detailed analysis of each citation. Instead, these are referenced to demonstrate the context in which hearsay has been admitted. The article assumes some familiarity with the elements of proof in trust and estate litigation, which most often involves allegations of diminished capacity and undue influence. In such litigation, hearsay evidence is offered to prove mental deficits, susceptibility to influence, intent, feelings toward beneficiaries, and subversion of free will.

II. STATE OF MIND

The hearsay exceptions for present and prior state of mind are particularly helpful in contests where the decedent's intent is at issue. If circumstances demonstrate the reliability of these out-of-court statements this is the best evidence of intent. Note that the requirements for present state of mind and prior state of mind are slightly different.

A. Requirements for Present State of Mind Exception (Evidence Code § 1250)

Evidence of a statement of the declarant's then-existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not inadmissible hearsay when:

1. Offered to prove the declarant's state of mind, emotion or physical sensation at that time or any other time when it is itself an issue in the action; or
2. Offered to prove or explain acts or conduct of the declarant;⁵ and
3. The statement is made under circumstances that indicate its trustworthiness.

The exception does not allow a statement of a memory or belief to prove the fact remembered or believed.⁶ For both exceptions, statements of a declarant's state of mind may be used only to prove state of mind and no other fact.⁷

B. Requirements for Prior State of Mind Exception

(Evidence Code § 1251)

Evidence of a prior state of mind, emotion, or physical sensation is not inadmissible hearsay when:

1. Offered to prove such prior state of mind, emotion, or physical sensation when it is itself an issue in the action and the evidence is not used to prove any fact other than state of mind, emotion, or physical sensation;⁸ and
2. The statement is made under circumstances that indicate its trustworthiness; and
3. The declarant is unavailable.⁹

Unavailability must not be due to the procurement or wrongdoing of the proponent for the purpose of preventing the declarant from attending or testifying.¹⁰ In cases of physical or mental illness or infirmity, the severity of the infirmity must make it relatively impossible, rather than inconvenient, for the witness to

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testify.¹¹ Unavailability must be established by the proponent of the statement and is left to the discretion of the trial court. Expert medical testimony is permissible, but it is not required. However, the unavailability of a witness caused by illness or frailty will be difficult to establish without expert opinion testimony. In one case, the attorney's testimony and a written statement by his 80-year old client was insufficient to establish unavailability.¹²

C. Trustworthiness of Statements (Evidence Code § 1252)

For both state of mind exceptions, the statement will be deemed inadmissible if made under circumstances that indicate its lack of trustworthiness.¹³ This requirement refers to the statement made by the hearsay declarant, not to the testimony of the witness who relates the hearsay statement to the trier of fact.¹⁴ If a statement was made with a motive to misrepresent or to manufacture evidence, the statement is not sufficiently reliable to warrant its reception into evidence.¹⁵ The fact that state of mind evidence is self-serving will not bar admission.¹⁶ Accordingly, the proponent of the evidence must produce proof establishing the reliability and the trustworthiness of the statement.

D. Application of the State of Mind Exception in Trust and Estate Litigation

1. State of Mind as Evidence of Undue Influence

In cases of undue influence the wrongdoer frequently isolates the testator, or controls his or her contact with others in such a way that the undue influence is not discovered until after the testator's death. Determined wrongdoers usually ensure that conflicting documents are promptly discarded. As a result, statements of the decedent's state of mind are often the only evidence of whether the will or trust was the result of undue influence. Recognized indications of undue influence include dispositions at variance with the decedent's intentions, distributions to persons unlikely under the circumstances to be the objects of the testator's bounty, and the testator's increased susceptibility to undue influence.¹⁷

There are several estate litigation cases which illustrate the application of this exception. In an action by the administrator of a decedent's estate to set aside an inter vivos gift which the decedent allegedly made to a husband and wife as the result of their undue influence, the decedent was alleged to have said that he had been "tricked" into making the gifts and that he was "very hurt" by their actions. Though the statements contained inadmissible hearsay statements (the testator had been tricked), the declarations also contained admissible evidence of the decedent's state of mind at the time he made the gift, i.e., a belief that he had been "tricked." Under Evidence Code § 355 the court was authorized to exclude the inadmissible hearsay, and admit evidence of the decedent's state of mind - his belief - for that limited purpose. Such statements are inadmissible insofar as they form a declaration or narrative to show the fact of fraud or undue influence, but may be used as evidence of the declarant's mental condition, if relevant.¹⁸

Generally out-of-court statements are not admissible to prove that a decedent was unduly influenced into making a will. For example, a declaration that "I was talked into making a will" is inadmissible hearsay.¹⁹ Similarly, a letter from a decedent to her aunt stating that the decedent's will was made at the aunt's request was inadmissible, "because it was merely a declaration as to a past event and was not indicative of the state of mind." However, a request that her husband protect her from her aunt because she would be cruel was admissible as a state of mind exception to show her mental attitude toward her aunt.²⁰

State of mind is useful to show susceptibility to influence. A testator executed wills in 1900 and 1902 that were substantially the same. They were admissible to show a more permanent and fixed state of mind of the testator with regard to her estate plan, and that changes made in her 1903 will, after she was influenced by her nephew, were more likely the product of fraud and undue influence.²¹

Undue influence cases are usually brought by disaffected beneficiaries who do not believe that the decedent would have given his or her estate to others. Hearsay is admissible to show the decedent's attitude toward relatives (potential heirs)²² and toward persons charged with undue influence.²³ For example, a decedent told his attorney to make a will and said "I went through hell and dynamite with my brothers to make this money and I am going to leave the money to my brother Dave; both [my niece and nephew] have received over a million dollars . . .That ain't hay is it?" These statements were admitted at trial along with a statement by the decedent in a prior will that the niece and nephew "have been as close to me as if they were my own children." The declarations by the decedent that he intended to "take care" of his niece and nephew were admissible to show the relations between them, and the state of the testator's mind with reference to his nephew and niece.²⁴

A decedent's statements to a contestant ten months prior to execution of the will about her desire to...