Law School Case Brief
Estate of Rickert v. Taylor - 934 N.E.2d 726 (Ind. 2010)
The Dead Man's Statute, Ind. Code § 34-45-2-4, establishes as a matter of legislative policy that claimants to the estate of a deceased person should not be permitted to present a court with their version of their dealings with the decedent. The statute provides that a person (1) who is a necessary party to the issue or record; and (2) whose interest is adverse to the estate; is not a competent witness as to matters against the estate. Ind. Code § 34-45-2-4(d). If a party "uses" a deposition in court for an evidentiary purpose, that party waives the protection of the Dead Man's Statute. But the waiver is effected by actual use of the claimant's deposition, not by the mere taking of a deposition.
Harry Rickert and his wife, Novella, had no children. When Novella suffered a stroke in 1990, Rickert hired Keta Taylor to assist him in caring for her. After Novella's death in 1991, Taylor continued to provide general housekeeping duties and care for Rickert until his death in May 2006 at the age of 93. In 1992, Rickert executed a will that divided his residuary estate equally among four nieces and nephews, and Carole Baker, whom Rickert described in his will as one "loved as if she were [the Rickerts'] daughter."
According to some witnesses Rickert could sign his name but was otherwise illiterate. In 1997 Rickert gave Taylor a general power of attorney, and six months later he executed a codicil to his will adding Taylor as a sixth residuary beneficiary. In 1999, a second codicil named Baker as personal representative of his estate. At that time he told Baker that his estate was worth about $ 600,000 and that each beneficiary would receive approximately $ 100,000 when he died. Between 1999 and 2006, Rickert's health declined. He required more constant care and was attended by Taylor on weekdays and by other hired caregivers on the weekends. At Rickert's death his probate estate was valued at approximately $ 147,000
In November 2007, a report was issued recommending that the thirteen accounts benefiting Taylor that were created without evidence of Rickert's involvement be placed in the Estate. At the trial the Estate successfully invoked the Dead Man Statute, Indiana Code section 34-45-2-4, to exclude any testimony from Taylor. The trial court nonetheless ruled for Taylor on most issues. The Estate appealed, and a majority of a state appellate court reversed and remanded with directions to apply the common law presumption of undue influence to determine the validity of Taylor's transactions as attorney-in-fact.
Could Taylor have testified at trial under the Dead Man's Statute?
When Taylor attempted to testify, the Estate objected and the trial court excluded any testimony related to "the things that deal with the accounts and surrounding the accounts and the handling of them." The court cited the Dead Man's Statute, Indiana Code section 34-45-2-4, as the reason for the exclusion. The Dead Man's Statute established as a matter of legislative policy that claimants to the estate of a deceased person should not be permitted to present a court with their version of their dealings with the decedent. The statute provides that "a person (1) who is a necessary party to the issue or record; and (2) whose interest is adverse to the estate; is not a competent witness as to matters against the estate." I.C. § 34-45-2-4(d). Taylor contended that although she was an incompetent witness under the Dead Man's Statute, the Estate waived any objection to her competence by filing her deposition with the trial court. Taylor cited the rule that if a party "uses" the deposition in court for an evidentiary purpose, that party waives the protection of the Dead Man's Statute. This doctrine was grounded in a notion of fairness, and prevented estates from being able to pick and choose from among the statements claimants may have made. But the waiver was effected by actual use of a claimant's deposition, not by "the mere taking of a deposition."
The Estate filed the deposition with the trial court but did not cite it in summary judgment proceedings or offer it into evidence at trial. Although Taylor conceded that the Estate did not actually use the deposition for any evidentiary purpose, she contended that filing it with the trial court allowed for its potential use. Because the Estate could have used the deposition testimony, she argued, she should have been able to testify at trial. The court disagreed. In order to waive objection to the competence of a witness under the Dead Man's Statute by taking advantage of a deposition of a person who was adverse to a decedent's estate, the estate must use the deposition by offering it into evidence at trial or pretrial hearing, or citing it to the court as, for example, by designating it in support of or opposition to a summary judgment motion.
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