WITNESSES-DEAD MAN STATUTES-COMPETENCE OF SPOUSE OF PARTY OR INTERESTED PERSON-EFFECT OF DIVORCE

Authors

James E. Tobin S.Ed., University of Michigan Law School

Abstract

The "Dead Man" statutes, enacted in various forms in almost every state, generally forbid a party or person interested to testify in an action involving a decedent's estate. As is well known, these statutes are the lone survival of the common law rule disqualifying parties and persons interested as witnesses in all actions, a rule which has otherwise been universally repudiated because of the realization that pecuniary interest does not necessarily raise any large probability of falsehood and that, even if it did, the risks of admitting such testimony can easily be minimized and are far outweighed by the advantages to be gained. In a recent Illinois decision the court excluded as a witness not only a party to an action involving a decedent's estate but also the party's divorced wife. This holding raises certain questions: (1) Is it a "general rule," established in most states, that the spouse of a person disqualified by a "Dead Man" statute is likewise disqualified? (2) What are the common law or statutory bases for any such disqualification? (3) What is the effect of divorce? Answers to these questions will require (1) an inquiry into the common law as to the spouse's competency and ( 2) an examination of various relevant statutes.

Recommended Citation

James E. Tobin S.Ed., WITNESSES-DEAD MAN STATUTES-COMPETENCE OF SPOUSE OF PARTY OR INTERESTED PERSON-EFFECT OF DIVORCE, 46 Mich. L. Rev. 664 (1948).
Available at: https://repository.law.umich.edu/mlr/vol46/iss5/7