Section 1.19 Competency

• Library: Estate Administration 2014 Supp

1. (§1.19) Competency

Section 491.010, RSMo 2000 (the Dead Man’s Statute), was amended in 1985 to abolish the incompetency of one party to the action to testify when the other party is deceased or is mentally incapacitated. As pointed out by Missouri Problems of Proof, ch. 1, §1.3 (MoBar 1977, 1978, 1979) (out of print), under the common law, all parties or others having a direct pecuniary interest in the outcome of the litigation are incompetent witnesses to testify concerning any matter in the suit. Section 491.010 was enacted for the purpose of abrogating the common law rule. Thus, § 491.010 has been regarded as a qualifying, rather than a disqualifying, statute. The 1985 amendment further qualifies formerly disqualified witnesses when another party is deceased or incapacitated. The amendment is effective as to all trials commenced after September 28, 1985.

To counter balance the advantage given to the formerly disqualified witness, the amendment to § 491.010.2 provides:

In any such suit, proceeding or probate matter, where one of the parties to the contract, transaction, occurrence or cause of action, or his agent in such matter, is dead or is shown to be incompetent, and the adverse party or his agent testifies with respect thereto, then any relevant statement or statements made by the deceased party or agent or by the incompetent prior to his incompetency, shall not be excluded as hearsay . . . . [Emphasis added.]

The problem of understanding and applying the “Dead Man’s Statute” as it existed before the amendment is not eliminated. The problem is actually exacerbated by the introduction of the hearsay proviso. An understanding of the former rule is essential in deciding whether to “qualify” hearsay statements of the formerly protected party that would otherwise be inadmissible. The amendment shifts the tactical decision whether to waive the “disability” from the formerly protected party to the adverse party. The decision to be made by the...