Wednesday, February 2, 2011
Dead Letter: Court Of Appeals Of Michigan Finds Dead Man's Statute Abrogated By Rule 601
MCL 600.2166, Michigan's Dead Man's Statute, provides that
In 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.
Meanwhile, Michigan Rule of Evidence 601 provides that
Unless 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.
In its recent opinion in In re Moon Estate, 2011 WL 254934 (Mich.App. 2011), the Court of Appeals of Michigan had to address whether Rule 601 abrogated MCL 600.2166.
Moon arose from a dispute regarding whether certain property belonged in a decedent's estate. The probate court held that a partnership existed between the decedent Mark E. Moon and his father, appellee Merlin Moon, and that appellee therefore had a 50% ownership stake in several items that had been listed in the estate inventory. Part of the court's basis for this conclusion was Merlin's testimony about conversations he had with his son concerning the partnership.
Appellant Kristina Moon, the personal representative of decedent's estate, thereafter appealed, claiming, inter alia, that Merlin's testimony should not have been received pursuant to MCL 600.2166. But according to the court,
In James v. Dixon,...this Court held that MRE 601 abrogated MCL 600.2166. The James Court noted that the courts have the power to adopt rules of evidence; therefore, any conflict between the statute and the rule must be resolved in favor of the rule....The Court found that MRE 601 eliminated the incompetency imposed by the dead man's statute.
Kristina argued, however, that courts are not authorized to enact rules that modify substantive law and that MCL 600.2166 was a substantive law. The court again disagreed, finding that dead man's statutes, like most rules of evidence, are procedural and therefore subject to modification by the courts.