1993 a. 486
Under the dead man's statute if an objection properly made is overruled, the objecting counsel can cross-examine without risk of waiving the objection. However, if an examination exceeds the scope of the direct examination by questions "beyond the scope," and the examiner elicits the very information sought to excluded, such examination "beyond the scope" constitutes a waiver of the objection. Estate of Molay,
46 Wis. 2d 450
,
175 N.W.2d 254
(1970).
While the benefit of the dead man's statute is waived when the opposite party opens the door, waiver is not effected when testimony elicited from an interested survivor established only independent facts made up of physical actions of the parties and no inquiry was made into what, if anything, actually transpired between the decedent and the interested survivor with regard to these actions. Johnson v. Mielke,
49 Wis. 2d 60
,
181 N.W.2d 503
(1970).
A widow, sued on a note as comaker with her husband, cannot exclude testimony as to transactions with her deceased husband on the ground that her husband had acted as her agent in the transaction when no evidence of agency was presented. Keller Implement Co. v. Eiting,
52 Wis. 2d 460
,
190 N.W.2d 508
(1971).
An attorney who drew a will directing that he be retained to probate the estate was not barred from testifying by this section. Casper v. McDowell,
58 Wis. 2d 82
,
205 N.W.2d 753
(1973).
An interested person may testify as to overhearing a conversation the deceased had with 2 other persons, also since deceased, while the witness was in another room. Estate of Nale,
61 Wis. 2d 654
,
213 N.W.2d 552
(1974).
A company waived the protection of the statute when it presented a principal stockholder's widow as a witness. Younger v. Rosenow Paper & Supply Co.
63 Wis. 2d 548
,
217 N.W.2d 841
(1974).
In a petition for proof of heirship by the natural son of the deceased and a cross-petition by the deceased's niece and nephew alleging that the son had been adopted by his aunt, testimony by the cross-petitioner's mother, a sister-in-law of the deceased, as to conversations with the deceased were not precluded by this section because she did not stand to gain or lose from the direct legal operation and the effect of the judgment, and her interest in a judgment in favor of her children was too remote and speculative to bring her within the statute's restrictions. Estate of Komarr,
68 Wis. 2d 473
,
228 N.W.2d 681
(1975).
The protection of the dead man's statute was waived when counsel objected to the admissibility of evidence rather than to the competency of the witness. In Matter of Estate of Reist,
91 Wis. 2d 209
,
281 N.W.2d 86
(1979).
Deposition questions about a transaction with the decedent did not result in a total waiver of the dead man's statute for purposes of trial. In Matter of Estate of Vorel,
105 Wis. 2d 112
,
312 N.W.2d 850
(Ct. App. 1981).
The core meaning of this section is that it disqualifies a witness to a transaction or communication with a decedent from testifying about that transaction or communication in his or her favor, or in the favor of any party to the case claiming under the witness. The statute does not preclude an opposing party from calling adversely a witness to a communication or transaction with a decedent. A witness to a communication or transaction with the decedent may not proclaim himself or herself to be incompetent to testify under the statute if no other party makes that objection. Bell v. Neugart,
2002 WI App 180
,
256 Wis. 2d 969
,
650 N.W.2d 52
,
01-2533
.
Under ch. 766, the marital property act, in any claim for unpaid wages a non-wage earning spouse has the same interest in the potential income as the spouse who earned the wages. In the case of an unrepaid loan of marital property each spouse would have the same ownership interest. To the extent both spouses have the same ownership interest in the property that gives rise to an action, and the same right to control and manage that property, each spouse's interest in the outcome of the litigation is as present, certain, and vested and each is barred form testifying regarding the transaction. Gerczak v. Gerczak,
2005 WI App 168
,
285 Wis. 2d 397
,
702 N.W.2d 72
,
05-0070
.
Established Wisconsin law recognizing that the testimony of a drafting attorney as to the statements made to him or her by the testator is admissible on the question of intent once such extrinsic evidence becomes admissible. Czaplewski v. Shepherd,
2012 WI App 116
,
344 Wis. 2d 440
,
823 N.W.2d 523
,
11-2521
.
The core meaning of this section is that it disqualifies a witness to a transaction or communication with a decedent from testifying about that transaction or communication in his or her favor, or in favor of any party to the case claiming under the witness. A witness's interest must be present, certain, and vested, not just a remote or contingent interest. Because any interest in avoiding a threat of malpractice, real or imagined, would be a remote or contingent interest, the trial court properly exercised its discretion in permitting an attorney who drafted a will to testify about the testator's intent. Czaplewski v. Shepherd,
2012 WI App 116
,
344 Wis. 2d 440
,
823 N.W.2d 523
,
11-2521
.
A "transaction" under this section means a "mutual transaction between the deceased and the surviving party, one in which they both actively participate." The statute does not bar a witness from testifying as to his or her observations and description of an event or a physical situation, if such testimony does not involve a mutual transaction in which the deceased actively participated. Rutter v. Copper,
2012 WI App 128
,
344 Wis. 2d 596
,
824 N.W.2d 885
,
12-0025
.
"Communication," as used in this section, includes statements made to a deceased, irrespective of whether or how the deceased responded. Informing a person about what that person is doing is an effort to communicate something, and so the dead man's statute prohibits testimony about that communication. Rutter v. Copper,
2012 WI App 128
,
344 Wis. 2d 596
,
824 N.W.2d 885
,
12-0025
.
Current law expresses disdain for the dead man's statute and requires courts to construe it narrowly and restrict its application whenever possible. Havlicek/Fleisher Enterprise, Inc. v. Bridgeman,
788 F. Supp. 389
(1992).
In order to render a witness incompetent under this section, a party must show: 1) a transaction or communication between the decedent and the witness; 2) the witness has an interest in the matter at hand; and 3) the liability or cause of action of the party advocating incompetency arose through, from, or under the deceased. Schimpf v. Gerald, Inc.
52 F. Supp. 2d 976
(1999).
The Wisconsin Deadman's Statute: The Last Surviving Vestige of an Abandoned Common Law Rule. Stevens. 82 MLR 281 (1998).
The Deadman's Statutes: Who is an Interested Party in Wisconsin? Dibley. 87 MLR 1025 (2004).
Raising the dead man's statute in federal court. Pendleton. Wis. Law. March 1990.
