No More Zombie Litigation? What the Repeal of the Dead Man’s Statute Means for Will, Trust, and Estate Litigation

April 21, 2017

Until recently, Wisconsin was one of the minority of states with a so-called “dead man’s rule” or “dead man’s statute.” Wisconsin’s rule, codified in Wis. Stat. §§ 885.16 and 885.17, generally forbade a person from testifying about communications with a dead person if the witness has a personal interest in the outcome of the litigation, or if another party in the litigation has such an interest that is derived through that person. Unlike other states, Wisconsin’s rule generally did not allow exceptions, making it a trap for the unwary, or in the worst case, a vehicle for preventing overwhelming evidence of a testator’s intent.

Not surprisingly, Wisconsin courts have generally taken a dim view of this potentially punitive statute. Trial judges have even been known to encourage the parties on all sides to agree to waive the rule, so that there may be a full presentation of all evidence relating to a will or trust. Nonetheless, the rule has remained the law—until now. Following a petition by the Wisconsin Judicial Counsel, the Wisconsin Supreme Court has approved repeal of the dead man’s statute, effective July 1, 2017. (For currently-pending cases, judges will have the discretion whether to apply the statute.)

What will be the effect on litigation? In some cases, perhaps not much, especially if the situation arises where all parties had already agreed to waive the rule. In other cases, though, where the rule would have resulted in extensive motions or briefings by both sides, litigants will at least avoid unnecessary costs. While an argument might be made that this rule will allow additional evidence, as a practical matter much less time will be spent presenting the evidence than was formerly spent arguing over the application of the rule. After all, most conversations can be easily summarized, and usually people only remember a few key ideas or statements from a conversation anyway. More importantly, rather than arguing over whether “zombie” testimony is inherently untruthful, the parties in estate lawsuits can proceed to establish facts in the manner normally done in other cases—through testimony, documentation, and corroborating evidence. Ultimately, having a court consider all the facts is usually a good thing.