Of the nine remaining jurisdictions with relaxed rules for nuncupative wills, four continue to restrict evidence of a contract via some form of dead man's statute.
305) With equal vehemence, evidence scholars have condemned the dead man's statute, making arguments on the contracts side that seem directly responsive to criticism on the inheritance side:
Inheritance scholars have deplored nuncupative wills as "obsolescent and outmoded" (307) at the same time as evidence scholars have condemned the dead man's statute as a "relic.
1979) (offering a similar observation, and relating criticism of the dead man's statute to criticism of the general bar on interested testimony, which was overturned in the nineteenth century).
Under so-called dead man's statutes, a surviving party who contracted with a deceased party was barred from testifying in an action brought against the deceased party's estate.
The Dead Man's Statute
is one exception to the presumption of competence.
Kahn, Let's Give the Dead Man's Statute
a Decent Burial, 55 Ill Bar J 430 (January 1967).
In addition to repealing the Dead Man's Statute
, this bill creates a new hearsay exception that allows the introduction of a written or oral statement previously made by an unavailable introduced by an adverse party.
5th DCA 1989), a summary judgment motion in a dead man's statute environment presents a particularly delicate issue, largely because of the specter of a waiver of its protection.
additional citations omitted) Similarly, whether written, oral, or partially both, where writings and independent witnesses' testimony may establish some, but not all, of the material terms of a contract with the decedent, the dead man's statute applies to bar same.
There, it was correctly concluded that the mere use of an interested person's deposition in such a context does not waive the dead man's statute "for all purposes as to all matters contained in the deposition.
Cohen was completely disqualified and barred from tendering any evidence as to the underlying transaction by virtue of the dead man's statute.