KRIMHILD HACKMANN, APPELLANT,
v.
BARBARA T. HYLAND, DIANNE R. BESKIND, JAMES WARREN THOMAS, JR. AND THE ESTATE OF JAMES WARREN THOMAS, APPELLEES
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Hackmann sought reformation of a deed executed by a decedent intended to convey their shared home to her, but the deed contained an incorrect legal description referring to previously owned property. The trial court erroneously excluded evidence regarding the decedent's intent under the dead man statute, prompting reversal and remand for a new trial.
The trial court erred in excluding the testimony. The dead man statute does not bar testimony from disinterested witnesses regarding the decedent's statements about intent. The burden of proving a witness is disqualified due to interest rests with the objecting party, not the party seeking to call the witness, and competency is presumed unless the contrary is established.
[1] The dead man statute precludes testimony regarding oral communications between an interested person and a decedent.
[2] The burden of proving a witness' disqualification to testify under the dead man statute rests upon the objecting party.
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Join FLexlaw to unlock all legal intelligence“The dead man statute precludes any person who is interested in the action from testifying as to oral communications between the interested person and the decedent.”
Defines the scope of the dead man statute and establishes that it only applies to interested parties, not disinterested witnesses.
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Join FLexlaw to unlock all legal intelligenceHackmann had a long-term relationship with decedent Thomas and alleges he intended to convey to her the home they shared, which was his only real prop…
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NESBITT, Judge.
This is an appeal from a final judgment dismissing Hackmann’s counterclaim for reformation of a deed. We reverse and remand for a new trial.
The facts relevant to this appeal are quite simple. Hackmann had a long-term relationship with decedent, Thomas. She alleges that, prior to his death, he intended to convey to her the home which they had shared and which was the only real property owned by decedent at that time. Toward this end, the decedent executed a quit-claim deed. It was later discovered that the legal description of the property corresponded to land which he had previously owned rather than to the parcel he owned at the time of the conveyance. Hackmann sought reformation of the deed arguing that a mutual mistake had occurred.
Pursuant to this theory, she attempted at trial to call friends and neighbors who could testify as to the parties’ relationship and as to the decedent’s stated intention to provide for Hackmann upon his death. In addition, a nurse who notarized the deed was prepared to testify as to statements made by the decedent indicating his intent to deed the property, to which he held title, to Hackmann.
The trial court excluded this evidence because it concluded that the dead man statute, section 90.602, Florida Statutes (1981), barred the testimony.
We disagree. The dead man statute precludes any person who is interested in the action from testifying as to oral communications between the interested person and the decedent. The appellees argue that the testimony was properly excluded because Hack-mann failed to satisfy her burden of showing that the parties were disinterested.
However, the law does not place this burden on the party who seeks to call a witness. Competency to testify is presumed until the contrary is established. See § 90.601, Fla.Stat. (1981); Williams v. McGehee, 2 Fla. 58 (1848).
Thus, the burden of proving a witness’ disqualification to testify because of interest is upon the objecting party. Lynagh v. Marine Bank & Trust Co., 177 So. 2d 256 (Fla. 2d DCA 1965). Since the appellee failed to satisfy this burden, the trial court erroneously precluded the testimony.
Consequently, we reverse and remand for a new trial.
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Mohumman Iqbal Zabrani v. Riveron, 495 So. 2d 1195 (Fla. 3d DCA 1986)…e truth. Because competency is presumed until the contrary is established, Williams, 2 Fla. at 68; see § 90.601, Fla.Stat. (1985), Zabrani has the burden of proving that Monroy was incompetent at the time the statement was given. Hackmann v. Hyland, 445 So. 2d 1079, 1080 (Fla.3d DCA 1984); C. Ehrhardt, Florida Evidence § 603.1 (2d ed. 1984); see Henderson v. United States, 218 F. 2d 14 (6th Cir.), cert. denied, 349 U.S. 920, 75 S.Ct. 660, 99 L.Ed. 1253 (1955). Zabrani has made no showing that Monroy was not co…
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Michael KEY, D.O. v. Angrand, 630 So. 2d 646 (Fla. 3d DCA 1994)…ion between the interested person and the person who is deceased ... at the time of the examination. Id. § 90.602(1) (emphasis added).2 The burden rests on the objecting party to show that the Deadperson’s Statute is applicable. Hackmann v. Hyland, 445 So. 2d 1079, 1080 (Fla. 3d DCA 1984). In Proprietors Insurance Co. v. Valsecchi, 435 So. 2d 290 (Fla. 3d DCA 1983), this court stated: “The test of the interest of a witness ... is whether he will gain or lose by the direct legal operation and effect of the j…
Authorities Cited
- In re Est. of Richard A. Lynagh v. Marine Bank & Tr. Co., 177 So. 2d 256 (Fla. 2d DCA 1965)
- Darius Williams and John A. Craig v. McGehee, 2 Fla. 58 (Fla. 1848)