Several states have an evidentiary rule known as the “dead man’s statute” designed to prevent perjury in a civil case. The rule generally prevents a witness from testifying as to any communications or transactions with a decedent unless some exception applies. In most cases, the restriction applies to witnesses that have an interest in the outcome of the case. For example, the statute would apply to a decedent’s son who was disinherited from the last will and testament and brought litigation against the estate. The son’s self-serving statements that the decedent said it was not his idea or he was forced into it would not be admissible in court. Michigan does have a version of a dead man’s statute, but it has been essentially nullified by subsequent evidentiary rules of the court.
MCL 600.2166 states that “[i]n an action by or against a person incapable of testifying, a party’s own testimony shall not be admissible as to any matter which, if true, must have been equally within the knowledge of the person incapable of testifying, unless some material portion of his testimony is supported by some other material evidence tending to corroborate his claim.”
A person incapable of testifying would include someone that is deceased. However, if the decedent’s testimony was contained in a deposition or affidavit that was taken while the decedent was alive and of sound mind, then those statements would not be prohibited from being admitted. Unlike other states, this dead man’s statute is not a total prohibition but rather requires the proponent of the statement to back it up with corroborating evidence before it can be accepted or rejected.
However, the Michigan Supreme Court subsequently adopted evidentiary rule MRE 601 which states: “[u]nless the court finds after questioning a person that the person does not have sufficient physical or mental capacity or sense of obligation to testify truthfully and understandably, every person is competent to be a witness except as otherwise provided in these rules”. This court rule contradicts the statute’s definition of person incapable of testifying by stating that EVERY PERSON IS COMPETENT to be a witness unless the court makes specific findings of incompetency.
Can a court rule override a statute passed by the legislature? The Michigan Court of Appeals ruled in James v Dixon, 95 Mich App 527; 291 NW2d 106 (1980) that the court have the power to adopt rules of evidence and any conflict between the statute and the rule must be resolved in favor of the rule. The court specifically found that MRE 601 eliminated the incompetency imposed on decedents by MCL 600.2166.
The abrogation of the dead man’s statute by MRE 601 has never been overruled and was upheld in recent years with Estate of Mark E. Moon, unpublished per curiam opinion of the Court of Appeals, issued January 27th, 2011 (Docket No. 294176)(In a dispute regarding what is contained in decedent’s estate, the court admitted testimony from a contestant regarding his conversations with the decedent about co-owning property in a partnership or joint venture).
In sum, the dead man’s statute in Michigan exists on paper but is suppressed by operation of MRE 601. Statements by the decedent may be admissible and fair game during the contest of wills, wrongful death suits and other proceedings where they matter. Be sure to contact a knowledgeable attorney in probate litigation or civil proceedings to see how the application of the dead man’s statute or MRE 601 will affect your case.