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Are a Decedent’s Statements About a Will or Trust Admissible in Florida?

May 16, 2022 CSBB Blog

In Florida, the hearsay rule does not bar the contents of, and most testimony about, a decedent’s will or trust.

The Florida “hearsay rule does not bar the testimony of the plaintiffs regarding (1) the fact that the decedent had executed a will and (2) the contents of the will.” In re Estate of Hatten, 880 So. 2d 1271, 1275 (Fla. 3d DCA 2004). Estate of Hatten concerned an action for tortious interference with a testamentary expectancy, which is one of the more common avenues for an inheritance dispute.  

Quoting Professor Charles W. Ehrhardt, Florida Evidence, which is one of the foremost authorities on Florida evidence, Estate of Hatten, quotes Florida’s specific hearsay exemption for statements which relate “to the execution, revocation, identification, or terms of the declarants will.” Fla. Stat. § 90.803(3)(b)(1).

Section 90.803(3)(b)1 recognizes that a statement of memory or belief is admissible when it relates to the execution, revocation, identification, or terms of the declarant’s will. Generally, courts recognizing an exception of the hearsay rule have provided that a decedent’s statements relating to the execution or the revocation of a will are admissible regardless of whether they are made prior or subsequent to the execution or revocation. Since the declarant is dead there is a much greater necessity for the admissibility of this evidence than is generally present under section 90.803(3). (Emphasis in original).

A declarant, for hearsay purposes, is the person who is making the out-of-court statement offered for its truth in a proceeding.

At common law, there is a doctrine known as the dead man’s rule (a/k/a dead man’s act or dead man’s statute) that prohibited a party from testifying in furtherance of their own cause in an action against a decedent, their estate, or trust. The Third District Court of Appeal held that the “Dead Mans Statute does not apply in an action for tortious interference with a testamentary expectancy” because in such a case the party being sued is not the declarant but instead an alleged tortfeasor from whom money damages is sought. (Emphasis in original).

The Florida Evidence Code, and specifically the hearsay rule, does not bar the testimony regarding the fact that someone executed a will or the will’s contents.  To be sure, this also applies to trust contests or any challenges regarding will substitutes. This evidentiary question often arises when a party offers a will or trust into evidence. An opposing party may then attempt to introduce otherwise inadmissible hearsay, perhaps a statement of the deceased testator or settlor (person signing the will or trust, respectively) regarding the will or trust. 

The probate and trust litigators at Comiter, Singer, Baseman & Braun LLP handle estate litigation throughout Florida.  To discuss your case with an attorney, contact us at 561.626.2101.

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