Dead Man's Statute

Section 491.010, RSMo contains Missouri’s version of the so-called “Dead Man’s Statute.” It provides, in relevant part, that “in any…suit…where one of the parties…or his agent…is dead or is shown to be incompetent…then any relevant statement or statements made by the decedent party or agent or by the incompetent prior to his incompetency, shall not be excluded as hearsay” — if the court determines that were the witness available such statements would have been admissible.

The statute was originally intended to prohibit interested witnesses from testifying about transactions with deceased persons. This approach was abandoned through an amendment. Estate of Oden v. Oden, 905 S.W.2d 914, 918 (Mo. Ct. App. 1995). The statute now permits an adverse party to testify about dealings with a person who has died or become incompetent. Section 491.010.2, RSMo. Coon v. American Compressed Steel, Inc., 207 S.W.3d 629, 636 (Mo. Ct. App. 2006).

While this law would seem to have limited applicability, it is frequently utilized in probate and estate litigation. For instance, when someone is contesting a will or a trust, a witness will often testify as to statements made by the decedent pertaining to the estate documents or the circumstances surrounding its execution.

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