How Can a Dead Man’s Words Be Admitted to Evidence in an Estate Litigation Trial?

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Probate Estate Attorney

Here’s the question we’ll try to answer today – when there’s a lawsuit involving someone’s estate, can you get into evidence a verbal or written statement(s) made by the person who has died?  The short answer is yes, you can actually get these statements into evidence if but only if the statement falls under what is known as the “exception to the hearsay rule.”

There are two criteria that a hearsay statement must meet if made by a decedent prior to his/her passing:

  1. The statement must be offered for or against the other party to the case on a claim or demand against the decedent’s estate or its beneficiary (beneficiaries); and
  2. The statement must have be formed on the decedent’s personal knowledge at a time when the subject matter of the state was recently perceived and while his or her recollection was clear about the subject matter

A key point to remember also is that the statement must be trustworthy and credible.

Here’s a hypothetical example that might clear up how and in what scenarios a statement can be proven to be “trustworthy.”

Imagine a plaintiff sues the administrator of the decedent’s estate for a breach of an “alleged” oral contract that the plaintiff had with the decedent.  An oral contract is one that was not executed or memorialized in writing, however it was intended to be a binding and enforceable agreement.  With that being said, the administrator of the estate testifies that he had a conversation with a friend of the decedent and the friend stated that before the decedent died, the decedent said that he had never reached an agreement with the plaintiff. Assume further in this case that the plaintiff’s attorney makes what is known as a “hearsay objection” about the testimony of the administrator. What will be the outcome?

Well, all of the hallmarks of an admissible statement are here: 1) the decedent had personal knowledge of his conversation with the plaintiff. 2) his statement was made shortly after the event had taken place and while his memory was very clear and 3) No circumstances are presented which would indicate or prove that the statement was not trustworthy. Thus it will likely be admissible.

To discuss your NJ Estate Probate Litigation matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.