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Bequest Management

Dying Declarations: The Absolute Essentials

September 24, 2021
Dying Declarations in Estate Administration

Someone’s “last will and testament” rarely contains their last words. Not infrequently, those come in the form of a deathbed communication, often to a friend or relative. These “dying declarations” can become quite relevant to estate administration.

Charities should care about this issue because end-of-life statements can sometimes decide “who gets what.” This post is intended to provide a high-altitude look at the ways “dying declarations” can—and cannot—impact estate administration.

What is a Dying Declaration?

We’ll define a “dying declaration” as the following: “a statement, written or oral,  made by the decedent at a time when his death was imminent, and when he was aware of its imminence.”

At the outset, the reader should remember that any dying declaration must pass evidentiary muster before it can be used for any purpose. A court will require proof that the decedent made the statement, that it was not coerced, that the declarant was mentally sound at the time, etc.

A dying declaration is a statement, written or oral,  made by the decedent at a time when his death was imminent, and when he was aware of its imminence.

Slayer Cases: The “Slayer Statute”

Almost every state has adopted some form of the so-called “Slayer Statute,” which prevents any part of an estate from passing to a person responsible for the death of the decedent. In these cases, a dying declaration by the testator would be admissible to prove responsibility for the death.

Although the judicial process to disinherit someone under a Slayer Statute has all the trappings of a murder case, it is a civil proceeding. This is significant because it lowers the evidentiary standard: the plaintiff (usually the estate or another beneficiary) only needs to establish that the alleged slayer “more likely than not” killed the testator. This is far below the “beyond a reasonable doubt” standard in a criminal case.

CCK COMMENT:  Although “Slayer Statute” cases do not, thankfully, arise frequently, we would not be surprised to see an uptick in future years. There appears to be a growing effort to bring long-term, continuous elder abuse under the coverage of these laws, which have historically been used in cases involving more discrete murderous acts.

It is important to note that slayers are divested of all benefits from an estate, including non-probate assets passing by beneficiary designations. If a beneficiary designation is invalidated, the affected account usually passes into the residuary estate. Many charities receive bequests from that source.

Can Dying Declarations Be Wills?

An oral dying declaration would not be sufficient to constitute a will and, for example, rescue an estate from intestacy. A written dying declaration could conceivably be a valid holographic will, or even a typical will if the formalities were followed. In the absence of any other will, some dying declarations might qualify as limited nuncupative wills.

Dying declarations cannot, by themselves, revoke an existing, valid will under state statutes. All states require specific physical acts for effective revocation. The Virginia statute is typical:

If a testator with the intent to revoke a will or codicil, or some person at his direction and in his presence, cuts, tears, burns, obliterates, cancels, or destroys a will or codicil, or the signature thereto, or some provision thereof, such will, codicil, or provision thereof is void and of no effect.

Are Dying Declarations Admissible to Clarify Ambiguous Wills?

If a will is deemed ambiguous, a dying declaration would typically be admissible to show the testator’s intent or what the evidence rules usually call “state of mind.”

So, suppose that Grandpa, on his deathbed, phones gift planner Paul at the American Heart Association and confides that his estate plan provides $1,000,000 to the organization. Several weeks later, when the will is offered for probate, the large bequest is designated only for “the Heart people.” In that case, Grandpa’s dying utterance is likely admissible to clarify his intention.

CCK COMMENT:  The hypothetical above would be complicated if the will were being probated in a jurisdiction having a Dead Man’s Statute. Unless Paul made a note of the phone call that qualified as a “business record,” Grandpa’s dying declaration might never come into evidence since the gift planner would be precluded from testifying.

POINT TO PONDER:  In the case described, what other kinds of evidence might the “Heart people” possess to bolster a claim to the $1,000,000?

Can Dying Declarations Create or Modify Trusts?

The rigidity of the rules governing the creation, modification, and revocation of wills is largely absent from the law of trusts.

It is quite conceivable that a dying declaration could create a trust, modify a trust, and perhaps even revoke a trust. It is the so-called “black letter law” that oral trusts are insufficient to transfer ownership of real property because of the ancient but still applicable “Statute of Frauds” (requiring a writing for real estate conveyances). Nonetheless, there are cases where courts, to carry out a decedent’s wishes, have relied on various legal theories (such as estoppel and “constructive trust”) to bend this restriction.

CCK OBSERVATION:  It is our experience that theories of “oral trust” and the closely related “implied trust” are usually presented as last-ditch efforts by disappointed beneficiaries in estate cases. A charity with a large financial interest in an estate that is threatened by assertion of a quasi-trust theory needs to engage experienced probate counsel as quickly as possible.