Estate of Redden Ex Rel. Morley v. Redden
194 N.C. App. 806, 2009 N.C. App. LEXIS 33, 670 S.E.2d 586 (2009)
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Rule of Law:
A party protected by the Dead Man's Statute does not waive that protection by deposing an adverse party, so long as the protected party does not elicit the incompetent testimony regarding oral communications with the decedent and makes timely objections if the deponent offers such testimony voluntarily.
Facts:
- Barbara Jean Redden (“defendant”) was married to Monroe M. Redden, Jr. (“decedent”), who held a bank account (Account 784) solely in his name.
- In June 2000, decedent granted defendant a Power of Attorney.
- On May 16, 2001, decedent designated defendant as the payable-on-death (POD) beneficiary for Account 784.
- On September 21, 2001, defendant established a new bank account (Account 801) solely in her name.
- On that same day, defendant used her Power of Attorney to transfer $237,778.71 from decedent's Account 784 to her new Account 801.
- Decedent later died, having never revoked the POD designation on Account 784.
Procedural Posture:
- The administrator of the Estate of Monroe M. Redden, Jr. (“plaintiff”) filed a complaint in a trial court against Barbara Jean Redden (“defendant”), alleging conversion, constructive fraud, and breach of fiduciary duty.
- Plaintiff moved for partial summary judgment.
- The trial court granted partial summary judgment in favor of the plaintiff.
- Defendant (appellant) appealed to the North Carolina Court of Appeals.
- After a prior opinion from the Court of Appeals, the case was heard by the state's highest court, the North Carolina Supreme Court.
- The Supreme Court remanded the case back to the Court of Appeals to reconsider the application of the Dead Man's Statute.
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Issue:
Does a decedent's estate waive the protection of the Dead Man's Statute by deposing an adverse party and offering that deposition at a summary judgment hearing, when the estate did not solicit testimony about oral communications with the decedent and promptly objected when such testimony was offered?
Opinions:
Majority - Jackson, Judge
No, the estate did not waive the protection of the Dead Man's Statute. The statute is waived only when the protected party elicits the incompetent evidence for its own benefit. Here, the estate's attorney did not ask questions soliciting evidence of oral communications between the decedent and the defendant. The defendant offered the incompetent testimony—that the decedent had instructed her to make the transfer—of her own volition. The estate's attorney promptly objected and moved to strike the testimony during the deposition, thereby preserving the statute's protection. Unlike cases where waiver was found, the estate did not solicit the incompetent testimony and its objections were timely, preventing the defendant from using her self-serving statements about the decedent's directives to defeat a motion for partial summary judgment.
Analysis:
This decision refines the application of the Dead Man's Statute's waiver doctrine in the context of modern discovery. It establishes that a protected party, such as a decedent's estate, can depose an adverse party without automatically forfeiting the statute's protections. The ruling provides a clear procedural safeguard: by carefully framing questions to avoid soliciting prohibited testimony and by lodging immediate objections when such testimony is volunteered, a party preserves its right to exclude that testimony. This clarifies that the act of deposing an opponent is not itself a waiver; rather, waiver is triggered by the specific act of eliciting the incompetent evidence.
