Notwithstanding the popularity of pirates these days, and their associated phraseology, people perceive that Dead Men do Tell Tales. It is not so.
There is this law, called the Dead Man’s Statute in the vernacular, that bars the living who stand to benefit from their story from testifying about the transactions they have had with the dead while the dead remained alive. Daily, it seems, I have people in my office who declare than grandmother always wanted her china to go to the favored grandchild, who normally is the person sitting in my office. Or more recently we have the claim of an oral contract concerning acquisition of property which lead to cash being deposited to the dead man’s bank account from his business associate. Then our man died. The living party to the contract is barred from testifying as to the transaction. There is no document anywhere remotely identifying the transaction or ownership of the money which might help him, but the claimant wants “his” money back.
The Law of Death is for the living much like a game of musical chairs; we all walk around as if the music is never going to stop then when it does the last man standing has nowhere to sit. We didn’t count on our oral contractor dying when he did, nor did we expect the testamentary gifts of property from grandparents to specific family members being required to be in writing. How often have I heard “Grandpa promised me the cabin!” Invariably, upon learning of the application of the Deadman’s Statute to his claim, our standing man declares “grandpa is rolling over in his grave over this!”
Curious as to whether the grave rolling was as common as the application of the Dead Man’s Statute, I drove out to the edge of town to see for myself. Arriving at the cemetery I expected to see lots of freshly turned earth. There was none, because I suppose that the transaction as remembered by the dead didn’t benefit the living as much as that last man standing said it did, and our dearly departed remains resting in peace.
There are exceptions of course, typically attached to those situations where pen and paper may not be available. For example, a soldier or sailor may, in the presence of two witnesses declare orally the disposition of his estate so long as that is less than two thousand dollars. The few appellate decisions in Washington State concerning these noncupative wills are about 100 years old, as you can imagine. The appellate decisions in Washington State concerning application of the Deadman’s Statute number 348, and counting.
Unfair? Perhaps. Unintended results are often the currency of the estates practice. The remedy is easy enough. Write it down. Soon. Life is short.