Wednesday, March 31, 2010
Dead Man's Chest, Take 3: Court Of Appeals Of Minnesota Opinion Makes Clear That Elimination Of Dead Man's Statute Does Not Eliminate Hearsay Concerns
As I have previously noted on this blog,
Dead Man's Statutes generally preclude interested parties from testifying about any communication, transaction, or promise made to them by a now deceased or incapacitated person when the testimony would go against the decedent's estate....The theory behind these statutes is that the interested person has reason to fabricate his testimony, and the deceased/incapacitated person does not have the ability to dispute the testimony and protect his estate from false claims. Thus, for instance, a person who sought to testify that a now deceased individual promised to give him his car would not be allowed to do so because of the fear that his testimony would consist of perjury.
As I have also previously noted on this blog, most states have repealed their Dead Man's Statutes. As the recent opinion of the Court of Appeals of Minnesota in Bronczyk v. Bronczyk, 2010 WL 1029738 (Minn.App. 2010), makes clear, however, the repeal of a Dead Man's Statute merely means that the person who talked to the now deceased or incapacitated person is no longer incompetent to testify; it does not mean that the rule against hearsay is satisfied.
Anthony J. Bronczyk, Sr. (decedent) commenced a lawsuit...seeking a judgment determining that respondents, six of decedent's children, had no right, title, or interest in certain real estate and rescinding a quit claim deed that purportedly conveyed the real estate from decedent and his wife to respondents. The complaint state[d]:
In June of 1995, [respondent] Katherine J. Bronczyk, one of [decedent's] daughters, caused to be prepared a Quit Claim Deed from [decedent] to [respondents] as grantees ... and on June 28, 1995, fraudulently and intentionally caused signatures to be placed thereon and the instrument notarized as though it were the signatures of [decedent] and [his] then wife, Katherine R. Bronczyk, who is now deceased, without the presence of either [decedent] or [his] wife at the purported time of acknowledgement of the deed, without consent and with intent to defraud [decedent].
The complaint further alleged that decedent never signed the deed, and that if he did, such signature could only have been the result of his daughter, respondent Katherine J. Bronczyk, taking advantage of decedent's vulnerability and "fraudulently inducing [his] signature by falsely and fraudulently representing to [decedent] that the deed was for some other purpose." The complaint asserted that decedent did not become aware of the deed or the alleged fraud until October 2001. Decedent passed away in either July or August 2007 while the litigation was pending. Prior to his death, decedent assigned his interest in this lawsuit to his son, appellant Thomas A. Bronczyk.
Thomas tried to prove the above facts through an affidavit prepared by the decedent about a year before he died as well as through his own testimony regarding conversations he had with the decedent in which the decedent denied signing the deed. The trial court, however, found the affidavit and testimony inadmissible, prompting Thomas' appeal. In that appeal, Thomas claimed that the affidavit was admissible under Minnesota Rule of Evidence 804(b)(2), which provides an exception to the rule against hearsay for
a statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.
The Court of Appeals of Minnesota correctly held, however, that the decedent did not prepare his affidavit while believing his death to be imminent, rendering this dying declaration exception inapplicable.
With regard to his proposed testimony, Thomas claimed that it should have been deemed admissible because Minnesota dispensed with its Dead Man's Statute by passing Minnesota Rule of Evidence 617, which provides that
A witness is not precluded from giving evidence of or concerning any conversations with, or admissions of a deceased or insane party or person merely because the witness is a party to the action or a person interested in the event thereof.
The Court of Appeals of Minnesota, however, again correctly concluded that this Rule merely meant that Thomas was no longer incompetent to testify regarding the decedent's statements. The court noted that Thomas still had to prove that the decedent's statement met some applicable exception to the rule against hearsay. Because Thomas did not point to any applicable exception, the trial court properly excluded his testimony.