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N.C. Court of Appeals: Caveators Were Not Prejudiced By Dead Man’s Statute Since the Jury “heard the gist of caveators’ evidence.”

          In 1960 Charles Pickelsimer (“Charles”) inherited significant stock holdings in a family telecommunications company.[1]  Over the next 45 years, Charles gave his children and grandchildren stock certificates as gifts.  When he sold the company in 2008 for $65 million, Charles and his children received significant cash distributions.  In 2009, Charles and his wife executed an estate plan to protect their assets, and their children were the primary beneficiaries.  Charles was diagnosed with mild dementia and memory loss in January 2010, and his wife died in March of that year.  His condition continued to subsequently decline. Charles executed a new estate plan in August 2010 (“2010 Will”), which disinherited his children completely.


          After Charles’ death in July 2011, his children (the “Caveators”) challenged the validity of the 2010 Will. It listed Brevard College, David Albertson (also the executor), Betty McCray, Transylvania Hospital, Inc., and Shelter Available for Family Emergency (SAFE), Inc. (propounders) as having an interest in Charles’ estate.  The Caveators alleged the named beneficiaries took advantage of Charles’ diminished mental state by exerting undue influence, convincing him to disinherit his family and leave substantial assets to them instead.  The jury returned a unanimous verdict determining the 2010 Will was not procured by undue influence, but was Charles’ true wishes.  The Caveators appealed the decision arguing, among other things, the trial court committed prejudicial error in excluding testimony of statements made by Charles under the Dead Man’s Statute.


          North Carolina evidentiary rules prohibit an interested witness (in this case, anyone who might inherit under the will) from testifying about oral communications between them and the decedent. The statute exists to prevent the temptation of perjury, since a decedent is unable to contest such testimony in court.  However, when evidence of the subject matter contained in the protected communication is offered by the executor or administrator of the estate, they “open the door,” allowing admission of the witness’ communication with the deceased.


          In this case, the Caveators contended the estate planner testified about communications with Charles regarding his relationship with Brevard College, opening the door for them to testify about oral communications concerning the same.[2]  While the trial court did allow the Caveators to testify about Charles’ lack of comfort with charitable giving to Brevard College, they were prevented from explaining the reason for Charles’ disenchantment with the college.  The Caveators wished to testify that after Charles resigned from the college board, he stated “[I am] so disgusted with the college [I] would not give them a God damned dime” (or words to that effect).   Furthermore, Caveators were prevented from testifying that Charles was offended the “Pickelsimer Memorial Garden” and its reflecting pool were filled in and renamed the “McClarty Garden” with no substitute location to honor the family’s past giving.  The Caveators claimed these exclusions were highly prejudicial to their case and would have altered the jury’s verdict.


          The North Carolina Court of Appeals disagreed, citing portions of the children’s testimony to demonstrate that the jury “heard the gist of the testimony caveators now say was excluded.”  The Court also determined that the admission of additional testimony regarding Charles’ relationship with the college would not have altered the jury’s verdict.  Based on the foregoing, the excluded testimonial statements made by Charles under the Dead Man’s Statute did not prejudice the Caveators’ case.



[1] In the Matter of the Estate of Charles W. Pickelsimer, Jr., N.C. App. No. COA14-1192 (August 18, 2015).

[2] Charles’ estate planning attorney presented testimony regarding conversations he had with Charles, referring to his notes taken during a brainstorming session with Charles indicating to whom he might leave money or assets.  His testimony included discussions with Charles about giving to charitable organizations, including Brevard College.