Hearing the Dead Speak: Hearsay in Probate Litigation

By Jennifer Olson

All litigators are familiar with the broad outlines of the hearsay rule, and probably with at least some of its exceptions. Generally, hearsay is not admissible.[1] Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”[2] But what if your entire case hinges on the intent of someone who cannot testify at trial because he or she has passed away?

This is a unique challenge facing litigators who take probate disputes to trial. The outcome of probate litigation hinges on the testator’s intent, but the testator is necessarily unable to provide testimony. As a result, when the parties dispute the validity or terms of a will, they may seek to admit out-of-court statements the testator made to family, friends, and lawyers. But is witness testimony on statements the testator made before death admissible when offered to prove the truth of the testator’s statement?

The answer depends—first on whether the testator’s statement is forward-looking, backward-looking, or a statement of present sense, and, second, for backward-looking statements, whether the statement is related to the testator’s estate plan. 

The Repeal of the Dead Man’s Statute

Until its repeal in 1987, Minnesota’s dead man’s statute provided that a person interested in the outcome of a probate litigation was incompetent to testify regarding conversations with a deceased person.[3] The statute was intended to reduce the possibility of perjury, but because the statute made it difficult for litigants to prove legitimate claims, the legislature repealed it.[4]

After repeal of the dead man’s statute, the Minnesota Rules of Evidence were updated to provide that “[a] witness is not precluded from giving evidence of or concerning any conversations with, or admissions of a deceased or insane party or person merely because the witness is a party to the action or a person interested in the event thereof.”[5] But as the Minnesota Court of Appeals has pointed out, Rule 617 does not require the admission of a decedent’s conversations with others, and it does not supersede other rules of evidence prohibiting the admission of such testimony on other grounds—such as the hearsay rule.[6]

The State of Mind Exception

Rule 803(3), the existing state of mind exception to the hearsay rule, sheds some light on the admissibility question:

A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.[7]

A close reading of the rule suggests the following principles:

• A testator’s statements, whether related to past or future acts, are admissible to show intent so long as the statements are related to the execution, revocation, identification, or terms of the will.
• A testator’s statements about his or her existing state of mind, emotion, sensation, physical condition, intent, or plan for the future are admissible to show intent or plan.
• But a testator’s statements regarding past acts unrelated to the will are inadmissible hearsay.

Very few Minnesota cases analyze the issue, but the limited case law applying the hearsay rule to testimony about statements a decedent made to a witness supports this reading. 

The Minnesota Court of Appeals suggested that hearsay statements offered to prove the testator’s state of mind are admissible in In re Estate of Perrault.[8] There, the proponents of a will offered testimony from a family friend about a conversation he had had with the testator’s husband.[9] The witness testified that the testator’s husband said that he and the testator made new wills to change the beneficiaries, and that they destroyed the old wills.[10] The Court recognized that Rule 803(3) creates an exception to the hearsay rule for statements of the declarant’s then-existing state of mind.[11]But the Court went on to conclude that the exception did not apply to the testimony at issue because the witness testified about statements made by the testator’s husband rather than by the testator herself.[12] Because the statements were not the testator’s, they were not admissible under Rule 803(3) to prove her state of mind.[13]

In Estate of Jones by Blume v. Kvamme, the Minnesota Supreme Court concluded that a decedent’s statement of particular intention or belief is competent evidence of the existence of the decedent’s belief.[14] There, the decedent was an employee and shareholder in a company that required employees to sell their stock back to the company on retirement.[15] When the decedent retired, the defendant offered to buy his stock.[16] At trial, there was a dispute about whether the decedent understood that the stock had been purchased by the defendant on behalf of the company or by the defendant individually.[17] The trial court admitted testimony from the decedent’s wife about statements he made to her about his belief that only the company could repurchase the stock, and that the defendant was purchasing stock from the decedent on the company’s behalf.[18] On appeal, the Minnesota Supreme Court confirmed that the statements were admissible because they were not admitted to prove an underlying fact, but rather were admitted to show the decedent relied on the defendant’s statements that he was purchasing the stock on behalf of the company.[19]

Two cases decided by the Minnesota Supreme Court before Minnesota adopted the Rules of Evidence also provide support for this reading of how the hearsay rule applies to a testator’s statements. In Dougherty v. Garrick, a 1931 decision, the Court observed that testimony about a decedent’s statements was admissible to show “the mental condition of the decedents, to show incompetency to make a will or contract.”[20] That same year, the Court distinguished between a testator’s statements offered to prove the speaker’s state of mind, and those offered to prove the truth of the matters asserted:

It is true that declarations of a testator indicating his condition or state of mind are admissible in a will contest where competency or undue influence are the issues, but they are not admissible as proof of the facts declared or stated in the declaration.[21]

Purpose of the Hearsay Rule

This approach makes sense if you consider the purpose of the hearsay rule—to ensure that evidence presented to factfinders is inherently reliable and trustworthy and is tested by cross-examination.[22]

In a 1933 United States Supreme Court decision, Justice Benjamin Cardozo explained that the rules of evidence are intended to minimize confusion:

It is for ordinary minds, and not for psychoanalysts, that our rules of evidence are framed. They have their source very often in considerations of administrative convenience, of practical expediency, and not in rules of logic. When the risk of confusion is so great as to upset the balance of advantage, the evidence goes out.[23]

This purpose is reflected in 19th century decisions from the United States Supreme Court and courts in Massachusetts and England addressing the admissibility of a testator’s statements. For instance, in 1868 the Massachusetts Supreme Court considered whether statements a testator made after she executed her will were admissible in an undue influence case.[24] The Court concluded the statements were not admissible to prove undue influence, but that they were admissible to show the testator’s mental state: 

The declarations of the testator accompanying the act must always be resorted to as the most satisfactory evidence to sustain or defend the will whenever this issue is presented. So it is uniformly held that the previous declarations of the testator, offered to prove the mental facts involved, are competent. Intention, purpose, mental peculiarity, and condition are mainly ascertainable through the medium afforded by the power of language. Statements and declarations, when the state of the mind is the fact to be shown, are therefore received as mental acts or conduct. The truth or falsity of the statement is of no consequence. As a narration, it is not received as evidence of the fact stated. It is only to be used as showing what manner of man he is who makes it.[25]

The Court explained that such statements cannot be admitted to prove the fact of fraud or undue influence because the decedent was not available to explain or contradict the statements.[26] “Obtained, it may be, by deception or persuasion, and always liable to the infirmities of human recollection, their admission for such purpose would go far to destroy the security which it is essential to preserve.”[27]

Similarly, in Mutual Life Insurance Co. of New York v. Hillmon, the United States Supreme Court explained that a testator’s statements were admissible to prove a testator’s state of mind because “[i]ntention, purpose, mental peculiarity, and condition are mainly ascertainable through the medium afforded by the power of language.”[28]

The Hillmon Court relied on Sugden v. St. Leonards, an English appellate court decision involving a dispute about the terms of a lost will.[29] The English court concluded that where a will was lost, a testator’s prior instructions or statements of what he intended to do in his will were admissible to prove the contents of the will.[30]

Using Rule 803(3) at Trial

Putting these principles into practice, Rule 803(3) recognizes the unavailability of the witness with the best—and perhaps only—knowledge of what the testator intended with respect to his or her estate plan by allowing testimony about three kinds of statements made by testators: (1) statements related to present state of mind, (2) statements related to future intent, and (3) statements related to past acts about the creation, revocation, identification, or terms of the testator’s will.

When witnesses testify during a probate trial, litigators should carefully consider any testimony about the testator’s statements regarding his or her past acts. If the statements did not involve the creation, revocation, identification, or terms of his or her will, they are inadmissible under Rule 803(3). But forward-looking statements, statements of intent, and backward-looking statements related to the creation, revocation, identification, and terms of the testator’s will are admissible.

A few examples illustrate how the rule works:

• If a witness testifies that the testator told her he wanted his unmarried romantic partner to inherit the testator’s house, and that he does not want his children to inherit because he had already been generous with them during the testator’s life, those statements are admissible. The statements indicate the testator’s future intent and present state of mind.
• If a witness testifies that the testator told the witness he transferred his business five years ago because the testator no longer wanted to manage it, that statement is inadmissible. It relates to a past action unrelated to the creation, revocation, identification, or terms of the testator’s will.
• If a witness testifies that the testator told the witness that one year ago he met with his attorney and changed his will to exclude his sons because he had had a falling-out with them, that statement is admissible. Although the statement relates to a past act, the statement relates to the terms of the testator’s will.

If a litigator expects this issue to come up during a probate trial, she should consider making a written motion in limine that includes a thorough explanation of how Rule 803(3) applies. While hearsay objections must also be made during witness testimony, there is often less opportunity for a nuanced discussion in the rush of trial. Presenting arguments in advance allows litigators to present the court with a detailed explanation of how the state of mind exception applies to testimony about a testator’s statements.

Keeping these principles gleaned from a close reading of Rule 803(3) top of mind will help you make quick decisions about when and how to make hearsay objections during your probate trial.

Jennifer Olson is a litigator at Best & Flanagan. During the summer of 2021, she represented a client in a three-week trial regarding the validity of an estate plan. She represents clients in a wide variety of cases, including shareholder disputes, employment litigation, and contract claims. 

jolson@bestlaw.com