How to Probate a Washington Descendant's Estate ---
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The Deadman’s Statute

The Deadman’s Statute (RCW 5.60.030) bars a party from testifying about a conversation or transaction with a Decedent, because it would be unfair for the Court to reach a decision based on only one side of the story.  “Death having closed the lips of one party, the law closes the lips of the other.”  Estate of Cunningham, 94 Wash. 191 (1917).

The Deadman’s Statute applies to probate proceedings, including admissions of lost or destroyed Wills and Will Contests.  Estate of Wind, 27 Wn.2d 421 (1947); Estate of Tate, 32 Wn.2d 252 (1948).  Furthermore, it also applies to a Personal Representative, testifying in a representative capacity, even in favor of a Will.  Estate of Shaughnessy, 97 Wn.2d 652 (1982).  In all of these three cases, the Deadman’s Statute prevented a beneficiary of a Will from testifying about a Will that their testimony supported.  In Estate of Shaughnessy, however, the beneficiary was also the named Personal Representative.  Query: Same result if named Personal Representative had not been a beneficiary?

“The purpose of the Deadman’s Statue is to prevent:

  • Interested parties from giving self-serving testimony about conversations or transactions with the Decedent.”  Wildman v. Taylor, 46 Wn. App. 546 (1947).
  • Frauds upon the estates of those who are no longer present to defend themselves.”  Estate of Lennon v. Lennon, 108 Wn. App 167 (2001) at page 177, quoting McGruart v. Brumback, 77 Wn.2d 441 (1969) at page 144.

Many people believe the Deadman’s Statute is an anachronism.  It evolved out of the early English common law tradition of not allowing an interested person to testify in his/her own behalf.  Although the majority of states have abolished it, Washington has retained it for limited purposes, including:

To exclude a survivor’s testimony of a conversation or transaction with a Decedent if the testimony is offered against the estate.

The test of whether the Deadman’s Statute prevents someone from testifying is: “Could the party gain or lose in the matter before the Court?”  Estate of Lennon v. Lennon, as above; Runkle v Bank of California, 26 Wn. App. 769 (1980).  The test for whether the testimony involves a conversation or transaction with the Decedent is: “Could the Decedent, if living and of his/her own knowledge, contradict the witness?”  Estate of Lennon v. Lennon, as above; Bentzen v. Demmons, 68 Wn. App. 339 (1993).

Substantively, by its own terms, the Deadman’s Statute only applies to adverse parties.  [But see Estate of Shaughnessy, above, where the Court barred the Personal Representative from testifying in favor of the Will.]  Furthermore, despite the language of the statute, the Deadman’s Statute is not an absolute bar.  Procedurally, in order for a party’s testimony to be excluded, it must be objected to.  Estate of Lennon v. Lennon, as above; Estate of Dand, 41 Wn.2d 158, 1952.  Consequently, for both substantive and procedural reasons, so as long as no one objects to your Petition to Probate a Lost Will, the impact of the Deadman’s Statute is moot.  If, however:

  • Any interested party objects to your Petition, and if thereafter
  • Any party attempts to testify about any conversation or transaction with the Decedent (such as about Decedent’s execution or safe keeping of his/her Will), and if in response to that attempt
  • Any party objects to that testimony —

that party’s testimony will become inadmissible.

Bottom-line: All of Decedent’s possible heirs and beneficiaries are potential adverse parties whose testimony is potentially inadmissible, due to the Deadman’s Statute.  Consequently, if at all possible, those persons you select to provide any Declaration should be a disinterested party — one who has nothing to gain or lose whether or not Decedent’s lost Will is admitted to probate.