The evidentiary rule commonly referred to as the “Dead Man’s Statute” is often an enigma to the bench and bar alike. The statute has a storied history in New York, with its roots in the common law and the first codification appearing in the mid-19th century. See Matter of Wood’s Est., 52 N.Y.2d 139, 143 (1981). While it has often been criticized, it remains on the books in New York as Civil Practice Law and Rule (“CPLR”) 4519. See, e.g., In re McCulloch’s Will, 263 N.Y. 408, 413–14 (1934).

The Dead Man’s Statute can be a powerful evidentiary tool if employed effectively. Where a party’s only evidence in support of its position consists of an interested witness’ testimony regarding conversations with a decedent, the application of CPLR 4519 can indeed be fatal. Thus, it is important for litigators to understand the contours of the statute, especially in the estate litigation context where it most often arises.