The Status of Ohio’s Dead Man’s Statute

Generally speaking, statements made by a decedent are hearsay. Evid.R. 804(B)(5) excepts statements of a deceased person from the hearsay rule under the following conditions: (1) the declarant must be unavailable under Evid.R. 804(A), and (2) the “estate or personal representative of the decedent’s estate” must be a party, and (3) the statement must have been made before the death or incompetency of the decedent, and (4) the statement must be offered to “rebut testimony by an adverse party on a matter within the knowledge of decedent.”

As stated in Bilikam v. Bilikam (1982), 2 Ohio App.3d 300, 2 OBR 332, 441 N.E.2d 845, paragraph four of syllabus:

“Evid.R. 804(B) is an exception to the hearsay rule for the benefit of a representative of a decedent to permit the decedent to ‘speak from the grave’ to rebut testimony of a party who may now testify under Evid.R. 601.”

In other words, this hearsay exception is not applicable by the party opposing the decedent. Rather, it is a hearsay exception for the declarations of a decedent which rebut testimony of an adverse party and is available only to the party substituting for the decedent. Bilikam, supra, at 305, 2 OBR at 337, 441 N.E.2d at 851. The exception was formulated to safeguard an estate from fraudulent claims and to create an “evidentiary balance” between the testimony now permitted through Evid.R. 601 and the contradictory, but hearsay, statements of a decedent on the same matter. See Johnson v. Porter (1984), 14 Ohio St.3d 58, at 62-63.

Many courts inappropriately let in statements of decedents when they shouldn’t.