About half the states, including Washington, have laws commonly called “dead man’s laws,” which limit the ability of a person in a suit against a dead person’s estate (or successor in interest) to testify regarding transactions with the dead person. The basic concept is illustrated by a statement by the Washington Supreme Court in 1917: “Death having closed the lips of one party, the law closes the lips of the other.”
The dead man’s law is intended to prevent perjury. In my opinion, they tend to keep out more evidence than is necessary. For example, if a will has been lost, the law generally allows its contents to be proven by testimony. The problem is that if the only people who know what was in the will have an interest in the estate, their testimony could be barred under the dead man’s law. This is a particular concern in Washington, which has one of the broadest dead man’s laws in the country.
Another situation in which a dead man’s law might be a problem is an attempt to enforce a prenuptual agreement against a deceased spouse’s estate. In Washington, agreements to distribute community property differently than the law normally requires are not uncommon, but the question then arises of how to get the agreement into court if the spouse asserting it can’t testify.
There are ways around dead man’s laws. The most obvious approach is to find someone who doesn’t have an interest in the case who can testify. The law doesn’t apply to that witness. In the lost will situation, finding the lawyer who prepared the will and getting his or her testimony or files (which will probably have a copy) might work.
A second approach is to try to set up a claim that isn’t barred by the law. A case from Washington earlier this year ruled that a claim for negligence against a lawyer, for not writing a will properly, wasn’t a claim against the estate, so the dead man’s law didn’t apply.
Oregon does not have a dead man’s law, so if your case is in Oregon, you don’t have to worry about it. In Washington, however, you may want to see a lawyer if your case involves dealings with someone who has died.