At common law, parties to litigation and others who had a financial interest in the outcome were prohibited from being witnesses because the temptation for such witnesses to falsify testimony was considered too great. This prohibition applied in all actions, regardless of whether any of the parties were dead.
Pennsylvania began to permit interested parties to testify in 1869. But they could not testify to matters brought by or against executors, administrators, or guardians.
Dead Man’s Act
- The Dead Man’s Rule is codified at 42 Pa.C.S.A. §5930. It is a part of the substantive law of the Commonwealth and is not a Rule of Evidence.
- Pennsylvania law provides that a person is presumed to be competent to testify as a witness in any civil matter. 42 Pa.C.S.A. §5921. The Dead Man’s Rule “provides an exception to the general rule of competency and disqualifies surviving parties to a transaction or event who have an interest adverse to the decedent from testifying as to matters which occurred prior to the decedent’s death.” Estate of Kofsky, 409 A.2d. 1358, 1359 (1979); Hera v. McCormick, 625 A.2d. 682 (1993).
- When a person is disqualified, he may not testify as to any transaction or event which occurred before the decedent’s death. Schroeder v. Jaquiss, 861 A.2d. 885 (2004).
- The purpose of the Act is to prevent the injustice that would result for permitting a surviving party to a transaction to testify favorably to himself and adversely to the interest of the decedent when the decedent’s representative would be hampered in attempting to refute the testimony or be in no position to refute it by reason of the decedent’s death. Schroeder v. Jaquiss, 861 A.2d. 885 (2004).
- Three conditions must be met for a witness to be incompetent to testify:
- The deceased must have an interest in the matter at issue; i.e. an interest in the immediate result of the suit;
- The interest of the witness must be adverse; and,
- The right of the deceased must have passed to the party of record who represents the deceased’s interests. Estate of Rider, 409 A.2d. at 399 Estate of Hendrickson, 130 A.2d 143 (1957). The actual interest of the decedent may not be proven; proof of a prima facie interest is sufficient. Estate of Rider, 409 A.2d. at 399; Estate of Hendrickson, 130 A.2d. 143 (1957). The test as to the witness’s interest is adverse is whether the witness will “gain or lose as a direct legal operation and effect of the judgement rendered.” In re: Estate of Hall, 535 A.2d. 47 (1987).
When a person who otherwise would be incompetent is called by the decedent’s representative to testify against his interest, that person is competent to testify as to all matters. 42 Pa.C.S.A. §5932. When a person who is incompetent to testify releases his or her interest, then that person is competent to testify as to all matters. But the release is effective only if it is done in good faith and not for the purpose of enabling the person to testify.
The ability to assert the Dead Man’s Rule can be waived by the decedent’s representative either because of necessity or as a tactic or inadvertence. The decedent’s representative must object to a witness’s incompetency at each opportunity or there is a risk of waiving it, as in the case of witnesses who are called to testify as to post-death events, but also testify as to pre-death events. If there is no objection to the testimony as to the pre-death events, the Dead Man’s Rule is waived.
Serving interrogatories and obtaining answers from the incompetent witness, or taking a deposition of an incompetent witness, constitutes a waiver of the Dead Man’s Rule.
The Dead Man’s Rule does not have to rise by a respondent in the first responsive pleading or as an affirmative defense in a New Matter.
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