Judge Lynn M. Egan Judge John J. Fleming December 17, 2013 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: To prevent fraudulent claims against estates; and 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.

The REPRESENTATIVE of the estate. 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 The witness’ ability to accurately observe; The witness’ ability to accurately recall & communicate; The witness’ ability to understand right from wrong; 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 8-201…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 When the representative introduces evidence of a conversation with the deceased or an event which took place in the presence of the deceased; When the representative admits the deposition of the deceased in evidence; When the testimony is competent under Section 8-401; 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!

Prospective vs. Retrospective 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.