Published on:

Using the Dead Man’s Statute in Tennessee Probate Lawsuits

The Tennessee Dead Man’s statute can be a major factor in the outcome of probate lawsuits in Tennessee, in some cases.  How so? It can prevent the admission of pivotal evidence at trial.

The key to understanding the Dead Man’s statute is to understand what it is supposed to prevent.  That may be best illustrated by an example.  Suppose, after John Jones dies and his daughter is appointed executrix of his estate, a former caretaker (“Caretaker”) of Mr. Jones files a lawsuit asserting that he is entitled to $100,000 from Mr. Jones’ estate.  The Caretaker claims that Mr. Jones told him repeatedly that he believed that he was underpaid and would receive $100,000 when he died.

In the above example, the Dead Man’s statute would prohibit Caretaker from testifying at trial that Mr. Jones had promised him $100,000.  The statute prevents a living party to a lawsuit  from testifying as to statements made by the deceased about transactions that party had with the deceased.

The law, rightly so, deems it unfair that a living person could take the stand and testify about what the deceased said, when the deceased might deny it, but cannot.  So, even if Mr. Jones did promise Caretaker $100,000, and, even if Caretaker is entitled to the $100,000, Caretaker will lose his lawsuit unless he has other evidence of the promise.

The Tennessee Dead Man’s Statute only applies to the testimony of parties. So, in the above example, a witness who is not a party to the case of Caretaker v. Executrix of the Estate of John Jones, could offer testimony of Mr. Jones’ promise.  If the son of John Jones heard his father promise Caretaker the $100,000, that testimony is admissible.  If the son did not hear his father tell Caretaker that, but his father told him, outside of the presence of Caretaker, that he had promised $100,000 to Caretaker, son’s testimony about what his father said is also admissible.

The Tennessee Dead Man’s statute may be rendered inapplicable where a deposition of the person whose estate is being administered is taken before he dies.  For example, assume Caretaker alleges that Mr. Jones promised him a $25,000 bonus if he worked through 2014, but failed to pay and reneged on his promise.  Caretaker quit in 2015, filed suit and Caretaker’s lawyer deposed Mr. Jones before he died, but not before trial.  If Mr. Jones was confronted with, and had the chance to deny, the allegations of Caretaker about the alleged promise to pay $25,000, then, the Dead Man’s statute would not bar Caretaker from testifying at trial that Mr. Jones had told him that he would be paid the $25,000.

The Dead Man’s statute does not apply to Tennessee will contests.  The rationale behind that policy is that no party in a will contest is seeking to take assets of the estate of the deceased, but are just contesting how the assets should be distributed.  So, for example, in a will contest between son and daughter of John Jones, Caretaker could testify that he heard Mr. Jones say that he changed his will to leave everything to his daughter because, if he did not, she would put him in a nursing home or stop letting his grandchildren visit with him.

There are innumerable twists and turns, exceptions and rules that apply to the use of the Tennessee Dead Man’s statute which I have not discussed. So, before you come to any definite conclusions about the effect of the Dead Man’s statute on your situation, consult with and obtain the opinion of an experienced Tennessee probate trial lawyer.