by Jonathan A. Nelson
The Virginia Supreme Court this month issued an opinion in Bon Secours-DePaul Medical Center, Inc. v. Rogakos-Russell, addressing Virginia’s rules on testimony with a deceased party, commonly called the “Dead Man Statute.”
The Dead Man Statute has two basic components:
(1) where there is a claim “by or against” a deceased person or his estate (and also for certain other unavailable persons), there must be disinterested corroboration of the basic elements of the claim; so, for instance, a child could not claim an oral contract with a deceased parent to be paid at $200 an hour from the Estate for lifetime personal care unless there was some outside confirmation of the agreement;
(2) however, statements by the deceased person which would otherwise be hearsay may generally be admitted as evidence.
The two components have a recognized side effect: the hearsay statement allowable under the second part of the statute must be corroborated in accordance with the first part before it can be used by the interested party.
While the statute is often used defensively by an estate to require disinterested corroboration before acknowledging a claim, in the Bon Secours-DePaul case, the estate of a Greek Orthodox priest brought a wrongful death claim against a hospital, and the only direct evidence of the cause of eventual death was the decedent’s own oral statements that he fell after leaning on a stretcher bed whose wheels should have been locked.
Testimony that the decedent made these statements was introduced by several family members, another priest, and a doctor. The Court found that the statements were sufficiently corroborated because the priest and the doctor were disinterested in the result, and further that the statements did not make the decedent a ‘witness’ requiring additional corroboration in their own right – he is a ‘hearsay declarant’ about whom the witnesses testified, and, having passed on to the next life, he has no remaining interest in the affairs of this life.
There is one important question which the Court declined to rule on in this case: whether the Dead Man Statute’s corroboration is even required where the hearsay is offered in favor of the deceased party rather than by its opponent. However, because the Court ruled (and this is consistent with centuries of law) that the decedent is not a party, it seems to me a fair inference that the decedent’s survivors will still need corroboration – the decedent is not strictly on their side, either. In fact, it is not always clear which side the decedent would be on. Consider an example where someone’s will has been probated and then a second will is introduced. Testimony of the decedent’s hearsay statements about which of the two documents is consistent with his wishes would likely be introduced by both sides; it would create a rather uneven playing field if only the party who lost the race to the probate office had to corroborate the decedent’s statements.
The Dead Man Statute can be technical to apply. If you are looking at litigation by or against an estate, including cases not directly related to probate issues, seek advice from counsel experienced in its use.
Virginia attorney Jonathan A. Nelson uses his extensive legal knowledge and trial experience to resolve conflicts, negotiate settlements, navigate compliance matters, and vigorously advocate in the courtroom in order to achieve the best possible outcomes for his clients. He practices in estate planning, probate, trust and estate administration, corporate law, and civil litigation related to these fields.
The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.