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Estate of Redden v. Redden - 194 N.C. App. 806, 670 S.E.2d 586 (2009)

Rule:

Witness testimony is incompetent pursuant to N.C. Gen. Stat. § 8C-1, N.C. R. Evid. 601(c) if the witness is a party or is interested in the event, her testimony relates to an oral communication with the decedent, the testimony is against a personal representative of the decedent, or the witness is testifying in his own behalf. The purpose of that rule is to exclude evidence of statements made by deceased persons, since those persons are not available to respond.

Facts:

A widow had been designated as the payable-on-death beneficiary of decedent's bank account; the decedent had also executed a power of attorney (POA) in the widow"s favor. The widow used the POA to transfer funds prior to the death of the decedent to a separate bank account in her name only. Her deposition was taken after his death. The estate sued the widow alleging that the widow, who had been married to decedent, committed conversion, constructive fraud, and breach of fiduciary duty. The estate timely objected at the deposition to oral communications between the widow and decedent on the ground that the communications violated the Dead Man's Statute, N.C. Gen. Stat. § 8C-1, N.C. R. Evid. 601(c). The estate also moved to strike the incompetent parts of the communications. The estate admitted the deposition into evidence, and sought partial summary judgment. It did not object to the incompetent parts at the partial summary judgment hearing. It then was granted partial summary judgment. 

Issue:

Did the estate's timely objections preserve the protections of the Dead Man's Statute?

Answer:

Yes

Conclusion:

The appellate court found that its timely objections and motion to strike the incompetent deposition parts meant that its Dead Man's Statute objections were properly preserved.

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