Bethesda Church v. Menning
In Bethesda Church v. Menning, 72 Wis. 2d 8, 239 N.W.2d 528 (1976), the supreme court considered whether the dead man's statute barred the testimony of a party's husband. The decedent had signed a will leaving all of her assets to Bethesda Church.
The decedent's living relatives objected to the will on the grounds of undue influence. Theiler, husband of one of the nieces, was permitted to testify about various conversations he had with the decedent.
The Bethesda Church claimed that it was error for the court to allow the testimony because Theiler was barred from testifying by the dead man's statute.
The supreme court stated "the dead man's statute renders a witness incompetent to testify on transactions or conversations with a deceased only when the witness is a party, or is a person from, through or under whom a party derives his interest ...." 72 Wis. 2d at 11-12, 239 N.W.2d at 530.
The court concluded that the testimony was not precluded by the dead man's statute because "Theiler was neither a party nor a person from, through or under whom his wife (a party) derived her interest." 72 Wis. 2d at 12, 239 N.W.2d at 530.
The court further stated that "'the true test of the disqualifying interest of the witness is whether he will gain or lose by the direct legal operation and effect of the judgment ....'" Id.