Here Lies Wisconsin’s Deadman’s Statute: 1858-2016

Wisconsin has become the 37th state to do away with the so-called “Deadman’s Statute” after a November ruling by the State Supreme Court repealed the 158-year-old law. The intent of the statute was to prevent “interested parties”—anyone with a stake in the outcome of estate litigation—from testifying about conversations they had with a deceased or incompetent person.

The law (Wis. Stat. §§ 885.16 and 885.17) was considered by many to be an outdated relic, confusing, often unfair and sporadically enforced. The motivation behind the law was the idea that a witness who stood to gain a piece of a decedent’s estate could easily make fraudulent claims about conversations had with the now-dead person, who was of course unable to respond or contradict anything the witness said.

The Classic Scenario: Contested Wills

To understand the appeal of the law and why it stuck around so long in Wisconsin, consider this scenario: Father dies. His will goes to probate and his oldest son, Jim, finds out he’s been disinherited. Jim files a case in court arguing that the will is invalid. The Deadman’s Statute would then apply, preventing Jim from testifying about conversations he had with his father that might help Jim advance his position in court. On the surface, it seems fair to prevent Jim from testifying; he has a lot to gain and the father can no longer speak for himself.

But what if Jim is honest? Therein lies one of the biggest arguments about the statute: it prevented honest people from bringing claims and giving testimony that might clarify the decedent’s desires. It made the assumption that interested witnesses would be inclined toward fraud. As a result, litigants spent a great deal of time and money arguing over whether the statute should apply in a given case—time and money that could have been spent arguing the real issues.

How much fraud was there to worry about? It’s not really possible to quantify, but as early as 1998 an attorney named Shawn Stevens wrote in the Marquette Law Review that, “For every piece of fraudulent testimony excluded by the Deadman’s Statute, there are a great deal more meritorious claims that are dismissed because of failure of proof.”

Joining the Majority

The Wisconsin Supreme Court’s decision brings our state in line with the majority of states in rejecting Deadman’s Statutes. It is interesting, and perhaps helpful timing, considering the “Great Transfer” of wealth that will occur over the next couple of decades as baby boomers transfer roughly $30 billion to their Gen X and Millennial children.

With the statute no longer in effect, there is one less legal issue to argue about. All the available evidence can come in, and determinations about the credibility of witnesses can be made by the factfinder (the judge), which is how the process works in virtually all other areas of law.

On the other side of the argument, could the number of case filings surge and overwhelm the courts? Will litigation over the Deadman’s Statute simply morph into litigation about witness bias (which is another potential way to keep an interested party’s testimony out of evidence)? Will we really gain any efficiencies by the repeal of the statute?

This all remains to be seen. But 37 states, the American Bar Association, the Uniform Law Commission and other law-related bodies all agree that this is the right move to make.

Questions About How This Law Change Affects You? Call Us.

If you have any questions about the repeal of the Deadman’s Statute and what it might mean for you, please don’t hesitate to contact us. You can reach our Hudson, Wisconsin, law firm by calling 715-386-4125 or by connecting with us online.