IN RE ESTATE OF MARY JANE MCCLINTOCK. ANITA F. WOLGAST, APPELLANT,
v.
JACK S. CAREY, APPELLEE
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This appeal challenges the probate admission of a will executed by an 82-year-old nursing home resident, raising issues of undue influence and improper application of the dead man's statute. The court reversed and remanded for retrial, holding that a beneficiary under a prior will should have been permitted to examine an adverse witness (the new will's beneficiary) on undue influence despite the dead man's statute.
The court held that when a party elects to call an heir as an adverse witness and risks such testimony, the dead man's statute does not grant the heir a privilege to refuse to testify. The trial court erred in sustaining the objection to Thompson's testimony, as the proffered evidence was material to the undue influence analysis.
[1] A party calling an heir as an adverse witness in a will contest waives the protection of the dead man's statute, and the heir cannot then refuse to testify.
[2] The dead man's statute is intended to prevent self-serving testimony from an interested party that the opposing party cannot controvert.
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Join FLexlaw to unlock all legal intelligence“when this party elects to call an heir as an adverse witness and to risk such testimony, the statute does not grant the heir a privilege to refuse to testify”
Establishes the holding that the dead man's statute does not bar testimony when the interested party is called as an adverse witness by the opposing party
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Join FLexlaw to unlock all legal intelligenceOn May 1, 1977, Mary Jane McClintock, age 82 and living in a nursing home after several strokes, gave oral instructions for a new will to Mary Thompso…
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STRICKLAND, J. TIM, Associate Judge.
This is an appeal from an order admitting a will to probate. In the trial court, appellant beneficiary under a prior will contested appellee’s petition for administration. The issues on appeal are undue influence and incorrect application of the dead man’s statute, Section 90.05, Florida Statutes (1977).
On May 1, 1977, Mary Jane McClintock gave oral instructions to Mary Thompson as to the contents of her new will. Mary Thompson, her former sister-in-law, was to be the residuary beneficiary. The will was then prepared by Mary Thompson’s personal attorney, Jack S. Carey, who included himself as personal representative. On June 16, 1977, the will was presented to Mary Jane McClintock by Carey and Thompson. Since Ms. McClintock had misplaced her glasses, Carey read the will to her. He asked her to identify the persons mentioned in the will and concluded that she had the mental capacity to execute a will. At the time of the execution of the will, Ms. McClintock was 82 years old and was living in a nursing home, having had several strokes.
In the trial, the appellant called Mary Thompson as an adverse witness seeking to interrogate her concerning communications and transactions with Ms. McClintock. The appellee objected, citing the dead man’s statute as a bar to her testifying. The court sustained the objection but permitted counsel to perfect a proffer by obtaining her answers to the disputed questions.
The case of In re Carpenter’s Estate, 253 So. 2d 697 (Fla.1971) lists the criteria for the determination of undue influence. The proffered testimony bore significantly on several of these criteria. The application then of the dead man’s statute, Section 90.05, Florida Statutes (1977), becomes the fulcrum issue. The trial court’s ruling denied the appellant the opportunity to adduce testimony from a material witness on the issue of undue influence.
In Disbro v. Boyce, 124 So. 2d 756 (Fla.3d DCA 1960), the rationale of the dead man’s statute is reviewed. It would preclude an heir, as Mary Thompson, from testifying on her own behalf regarding her transactions or communications with the testatrix. Such testimony would be of a potentially self-serving nature which the adverse party would be unable to controvert. However, when this party elects to call an heir as an adverse witness and to risk such testimony, the statute does not grant the heir a privilege to refuse to testify. We agree with this holding and therefore reverse the order admitting the will to probate and remand this case for retrial.
GRIMES, C. J., and SCHEB, J., concur.
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In re The Est. of Helena Hatcher v. Dodd, 439 So. 2d 977 (Fla. 3d DCA 1983)…ot, however, provide a privilege to refuse to testify akin to the privilege against self-incrimination. Heebner v. Summerlin, 372 So. 2d 518 (Fla. 4th DCA 1979). The parties to this lawsuit are not immune from testifying. In Re Estate of McClintock, 374 So. 2d 93 (Fla. 2d DCA), dismissed, 378 So. 2d 346 (Fla.1979). Thus, on remand, the interested parties herein may be called to testify and are competent to testify on all relevant matters except those requiring discussion of oral communications with the deced…
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In the Estate OF Arlethia Parson v. Hendley, 416 So. 2d 513 (Fla. 4th DCA 1982)…pecific knowledge of the oral communication to give testimony in an attempt to establish the oral contract. That is, such an adverse witness may not refuse to testify; the statute does not create immunity from testifying. In re Estate of McClintock, 374 So. 2d 93 (Fla. 2d DCA 1979). As we said, in Heebner v. Summerlin, 372 So. 2d 518, 519 (Fla. 4th DCA 1979): The legislative intent in passing the Dead Man’s Statute was to provide a shield when, by reason of death, a party to a transaction is prevented from…
Authorities Cited
- In re Est. of Coketine Bray Carpenter v. Carpenter, 253 So. 2d 697 (Fla. 1971)
- Addabelle Disbro v. Eldon L. Boyce C.T.A. of the Estate of Lulu Bell Reif, 124 So. 2d 756 (Fla. 3d DCA 1960)