DEAD-MAN’S ACT
Judge Lynn M. Egan
Judge John J. Fleming
December 17, 2013
WHAT DOES THE ACT
PROVIDE ?
The Dead-Man’s Act prohibits testimony:
• by a person whose interests are adverse
to the deceased (or disabled person);
• about matters that the deceased (or
disabled person) could have refuted.
WHAT IS THE PURPOSE
OF THE ACT?
The Act has the following dual purposes:
1) To prevent fraudulent claims against
estates; and
2) To equalize the testimonial positions of
the parties so the trier of fact doesn’t
receive a one-sided version of a
conversation or event.
WHEN DOES THE ACT
APPLY?
The Dead-Man’s Act applies at all stages of
litigation, including:
• Summary judgment
• Motions in limine
Rerack v. Lally, 241 Ill.App.3d 692 (1st Dist., 1992)
PROCEDURAL NOTE
OF
CAUTION!
• Unsworn allegations do NOT trigger the
Act because they are not evidence.
Argueta v. Krivickas, 2011 IL App (1st)
102166.
• Obtain a ruling BEFORE testimony is
elicited. “Courts are urged to provide
rulings…before trial.”
Davis
v.
SwedishAmerican Hosp., 2012 IL App (2d)
110575-U, ¶ 20.
WHO CAN ASSERT THE
ACT?
The REPRESENTATIVE of the estate.
NOT an adverse party !!!
An adverse party lacks standing to raise an
objection under the Dead-Man’s Act.
Estate of Schubert, 2011 IL App (3d) 100476-U.
WHO IS A
REPRESENTATIVE?
Section 8-201 defines “representative” as:
“An executor, administrator, heir or legatee
of a deceased person and any guardian or
trustee of any such heir or legatee, or a
guardian or guardian ad litem for a person
under a legal disability.”
735 ILCS 5/8-201 (West 2013)
NOTE ABOUT ESTATE
REPRESENTATIVES
The Act applies even if the representative is
sued individually, rather than in a
representative capacity….
SO LONG AS
The claim concerns the apportionment of
the estate.
Fisher v. Fisher, 2012 IL App (4th) 111125-U.
WHO QUALIFIES AS
“LEGALLY DISABLED”?
Section 8-201(a) defines “person under
legal disability” as someone…
“Who is adjudged by the court in the
pending civil action to be unable to testify by
reason of mental illness, an intellectual
disability, or deterioration of mentality.”
735 ILCS 5/8-201(a)
FACTORS TO CONSIDER
WHEN ASSESSING
DISABILITY
1) The witness’ ability to accurately observe;
2) The witness’ ability to accurately recall &
communicate;
3) The witness’ ability to understand right from
wrong;
4) The witness’ ability to understand questions.
NOTE: Finding of incompetence in Probate
action not binding elsewhere. Each judge must
make an independent assessment.
WHO IS “DIRECTLY
INTERESTED”?
The Act only defines who is NOT “directly
interested.”
Per Section 8-201, an interested person
does not include:
• Any person whose sole interest is as an
executor, trustee or other fiduciary
capacity
-EVEN
THOUGH
compensation may be received.
NO DISCLAIMERS
ALLOWED!
Section 8-501 precludes interested parties from
avoiding the application of the Dead-Man’s act
by assigning or releasing their claims.
“Any person who would…be incompetent to
testify…under the provisions of Section 8201…shall not become competent by reason of
any assignment or release of his or her claim,
made for the purpose of allowing such person
to testify.”
735 ILCS 5/8-501(West 2013)
CASE LAW ON “DIRECTLY
INTERESTED”
“A legal interest that is direct, certain, &
immediate, so that the party will gain or lose
as a result of the suit.”
Fisher v. Fisher, 2012 IL App (4th) 11125-U.
NOTE: The interest must be a MONETARY
gain or loss as a result of the judgment.
EMPLOYEES & AGENTS
OF
INTERESTED PARTIES
• Are NOT disqualified from testifying
because they have no “direct” interest.
• Employment status only affects witness
credibility.
People v. $5,608 United States Currency, 359
Ill.App.3d 891 (2d Dist., 2005)
CAN’T AVOID BAR
THROUGH INDIRECT
METHODS
Non-parties such as treating physicians &
experts do not qualify as people “directly
interested”
However, parties CANNOT use such witnesses
to do indirectly that which the party is precluded
from doing directly.
Estate of Justus v. Justus, 243 Ill.App.3d 737 (3rd
Dist., 1993).
WHO IS BARRED UNDER
THE ACT?
Any adverse or interested party who
testifies on his or her own behalf.
A “party” is one with “a right to control the
proceedings, to make a defense, to call &
cross-examine witnesses, & to appeal
from the decision.”
People v. $5,608 United States Currency, 359
Ill.App.3d 891, 896 (2d Dist., 2005).
WHO BEARS THE
BURDEN?
The burden of establishing that a
witness is disqualified under the Act
rests on the objecting party.
WHAT DOES THE ACT
BAR?
The Act only bars evidence that the
deceased (or disabled person) could have
refuted.
Gunn v. Sobucki, 216 Ill.2d 602, 609 (2005).
WHAT IS AN EVENT
UNDER THE ACT?
•
The Act was amended in 1973 to replace the
words “same transaction” with “same event.”
•
“Event” is generally interpreted as more
restrictive than “transaction.”
•
“Event” = Discrete occurrence
But see, Zorn v. Zorn, 126 Ill.App.3d 258 (4th
Dist., 1984)(event is “all of the connected
incidents & conversations leading up to the
[event].”
EXCEPTIONS
a) When the representative introduces
evidence of a conversation with the
deceased or an event which took place in
the presence of the deceased;
b) When the representative admits the
deposition of the deceased in evidence;
c) When the testimony is competent under
Section 8-401;
d) When the testimony relates to heirship of
the deceased.
CAUTION:
EXCEPTION (A)
The representative’s examination of ALL
witnesses must be “narrowly confined” so
as to avoid triggering this exception.
Theofanis v. Sarrafi, 339 Ill.App.3d 460, 469 (1st
Dist., 2005).
No interpretation of notes OR ELSE!!
Hoem v. Zia, 159 Ill.2d 193 (1994)
EXCEPTION (C)
ACCOUNT BOOKS
&
RECORDS
Section 8-401 “Where in any action or
proceeding, the claim or defense is
founded on a book account or any other
record or document, any party or
interested person may testify to his or
her account book, or any other record or
document & the items therein contained.”
“FOUNDED ON”
≠
EVIDENCE OF
Medical records do not qualify in a medical
malpractice case because they do not
operate “like a contract, a trust agreement,
or an account book.”
Theofanis v. Sarrafi, 339 Ill.App.3d 460 (1st
Dist., 2003)
DEATH DOES NOT
ERASE ADMISSIONS!
Statements in a discovery deposition or
answers to interrogatories escape the bar
of the Dead-Man’s Act if they qualify as
admissions.
“The
evidentiary
rules
regarding
admissions do not suddenly change after
a party’s death…”
Estate of Rennick, 181 Ill.2d 396, 408-409 (1998).
CAUTION: Abel v. GMC overruled!
WAIVER
Prospective vs. Retrospective
Fleming v. Moswin, 2012 IL App (1st) 103475
Theofanis v. Sarrafi, 339 Ill.App.3d 460 (1st Dist.,
2003).
IPI 5.02
FAILURE OF PARTY TO TESTIFY
DON’T FORGET TO TENDER !
Intended to avoid confusion in the minds of
the jury by reason of the fact that a
party…sat silent throughout the trial.