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Dead man’s statute on its way out

By: Erika Strebel, [email protected]//November 9, 2016//

Dead man’s statute on its way out

By: Erika Strebel, [email protected]//November 9, 2016//

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Trusts and estates attorney Jonathan Ingrisano is one of two Godfrey & Kahn attorneys who made the successful push to kill off the state’s dead man’s statute. Wisconsin Supreme Court justices recently voted to do away with the 158-year-old statute. (Staff photo by Kevin Harnack)
Trusts and estates attorney Jonathan Ingrisano is one of two Godfrey & Kahn attorneys who made the successful push to kill off the state’s dead man’s statute. Wisconsin Supreme Court justices recently voted to do away with the 158-year-old statute. (Staff photo by Kevin Harnack)

The dead man’s statute is on its way to becoming ancient history, spurring attorneys to prepare for change, particularly if they practice trusts and estates law.

Wisconsin’s dead man’s statute deems testimony inadmissible if it is about a transaction, usually regarding a financial interest, in which one or more of the parties has since died. The statute stems from the common-law belief that false testimony can be admitted more easily if a witness to a particular transaction is not around to dispute it.

The dead man’s statute poses many obstacles and headaches for practitioners, said Jonathan Ingrisano, a trusts and estates lawyer at Godfrey & Kahn in Milwaukee. For one, it can place a blanket ban on testimony, no matter how important it might be to a particular case.

“And at the end of the day, you don’t ever really feel the truth has come out,” Ingrisano said.

After hearing various arguments of a similar ilk, the Wisconsin Supreme Court voted last month to repeal the dead man’s statute. The rule is now expected to be a thing of the past come July, although the justices have yet to decide what wording they will use in their repeal order.

The consequences of the change are likely to differ for trusts and estates lawyers depending on what sort of practice they have.

Trusts and estates litigators are likely to find that adapting is fairly easy. They will benefit from the reduced restrictions on what witnesses can testify about, Ingrisano said.

But there will still be some checks. Testimony that has been deemed admissible, for instance, will remain subject to the rules of evidence. That means opposing parties will be able to counter the testimony by producing evidence of bias.

“There are a lot of commentators who would say to the effect that the temptation to fabricate testimony in that context is clear enough, that a reasonable jury should be able to recognize that,” Ingrisano said.

Apart from trusts and estates litigators, there is a second group of lawyers who are likely to be affected: estate planners. Once again, Ingrisano said, the change is likely to be mostly for the good.

Ingrisano says he doesn’t believe repealing the dead man’s statute will make it any easier to attack documents that estate planners draft. More likely is that it will open the door to testimony from beneficiaries who support a will or estate.

But estate planners must pay close attention to certain relationships and conditions that may affect how a client’s will or estate is perceived.

“You just have to be very cognizant of a lot of the warning signs that are there with potentially contested estates and trusts,” he said. “Is someone being disinherited? Is there a history of family dysfunction?”

In the meantime, Ingrisano suggests reviewing witness lists for pending cases and making sure the people appearing on them have been asked the right questions. And if depositions have been taken with the assumption that the dead man’s statue applied, attorneys now have good cause to go back and continue that deposition, he says.

The formal proposal to repeal Wisconsin’s dead man’s statute came from the Judicial Council, an independent body that suggests changes to the court system’s procedures. The statute, which was codified in 1858, has long been among the most expansive in the country, even though state courts began restricting its use in 1970.

The Judicial Council, for its part, began calling for the statute’s repeal as early as 1973 when it petitioned the high court to adopt rules of evidence. Although the justices did eventually adopt those rules, they declined to repeal the dead man’s statute.

With last month’s vote in favor of repeal, Wisconsin will now join 37 others that have either eliminated or modified their dead man’s statutes, or else never had them in the first place. Of the states that do have the statutes, most have limits or exceptions.

Despite lawyers’ distaste for the statute, calls for repeal came last month from only two lawyers: Ingrisano and fellow Godfrey attorney Jonathan Smies, whose practice is based in Green Bay.

Ingrisano said he was somewhat surprised, given the statute’s unpopularity among lawyers, that more people had not weighed in. As he explained to the justices when he testified, the statute is tough to explain to clients who are eager to testify about a beloved relative.

“It’s one thing to say, ‘The jury might not believe you, and here’s why,’” he said. “It’s another thing to say ‘Yeah, you don’t even get to talk about your conversation with your dad or with your mom or with your favorite aunt.’ … And that strikes them as being unjust.”

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