New York's Dead Man's Statute and Oral Promises

Oral promises concerning property made by one family member to another can have devastating consequences after the promisor's death if these promises are not memorialized in writing.  That is because New York's Dead Man's Statute (C.P.L.R. 4519) prohibits the admission of such oral promises by an interested party (in this case, the promisee) in the case of a Wills contest or other litigation.  The family strife that results due to the absence of a writing concerning the future ownership of the property in question can be easily avoided by consulting an attorney. 

Consider the case of Elizabeth Connelly Payne and her brother F. Henry Connelly (Payne v Connelly (1969, 3d Dept) 32 App Div 2d 693, 299 N.Y.S.2d 1013).  At issue in this case was whether Elizabeth could prove that she had been induced to relinquish a present benefit in return for her brother Henry's promise of future gain.  Elizabeth and Henry's aunt owned quite a bit of stock in the National Dairy Products Corporation.  Elizabeth Payne alleged that she was persuaded by her brother to dissuade their aunt from changing her will and leaving all of her stock holdings to Elizabeth (the original will left all of the stock to Henry), in exchange for Henry's promise to give Elizabeth one half of the stock after their aunt's death.

In due course, their aunt passed away leaving Henry as the sole beneficiary of the stock in question.  And then something unexpected happened:  Henry died as well, but without a Will (intestate).  All of his assets were distributed under New York's intestacy law to his spouse, Phyllis (the respondent in this case) and their children.   Henry also left behind significant assets in the Valley Coal and Supply Company to his heirs.  The only people present during the conservations concerning the aunt's will had been Elizabeth and Henry.  The Dead Man's Statute now prohibited Elizabeth from bringing in those conversations as evidence at trial. 

But what about her sister Florence and her brother-in-law's assertions concerning statements that Henry made during a Labor Day family gathering in 1962 during which he purportedly said that Elizabeth was to receive half of the National Dairy Product Corporation stock?  The court found that, while it was clear that the parties were discussing the aunt's Will, Henry's statement still did not go to the issue of whether the aunt had been induced to not make changes in her Will in favor of Elizabeth in return for Henry's promise to give Elizabeth half after their aunt's death.  As a result, Elizabeth's claim was denied by the court.

When it comes to our family, we want to believe that family members have our best interests at heart.  That is the case more often than not.  However, as in the case of Henry, unexpected events such as a sudden death and legal or mental incapacity can rob the best of intentions of their desired impact.  And once the unexpected happens, New York's Dead Man's statute prohibits the testimony of these oral promises with the deceased.

The best course of action when it comes to oral promises between family members or close associates is to memorialize them in writing.  You should consult an attorney to make sure that the proper legal documents are drafted and then properly executed under New York law.  Both parties will then have the assurance that the intentions expressed in oral promises will be carried out no matter what happens to either party.

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