The Journal of The DuPage County Bar Association

Back Issues > Vol. 19 (2006-07)

The Statutory Custodial Claim as a Sword or Shield in a Contested Decedent’s Estate
By Ronald J. Broida

The Problem

The following is an almost true story. Three middle aged siblings (the kids)sit across the desk and tell the following story. Fifteen years ago, Mom passed away and Dad remarried a lady now affectionately referred to as the step-monster. A few years ago, Dad began to slip and while the kids knew that he had Alzheimer’s Disease, they thought he was doing pretty well - at least up to the very end. He generally knew his surroundings, he dressed and washed himself, he fed himself and, until recently, he was paying his own bills and sending Christmas cards. He would have done even better had the step-monster taken better care of him. She even restricted the people who could see Dad.

Dad died a few months ago and when the estate was opened, the kids found that they were remembered in the will. They also found that the step-monster had filed a statutory custodial claim and if that claim is allowed, there won’t be much left over for anybody. Dad would be really upset if he knew his kids weren’t getting their fair share; it’s not the money, but......

What kind of claim could this be? Illinois appears to be the only state that permits a statutory custodial claim (755 ILCS 5/18-1.1). Take a look at this:

Statutory custodial claim. Any spouse, parent, brother, sister, or child of a disabled person who dedicates himself or herself to the care of the disabled person by living with and personally caring for the disabled person for at least 3 years shall be entitled to a claim against the estate upon the death of the disabled person. The claim shall take into consideration the claimant’s lost employment opportunities, lost lifestyle opportunities, and emotional distress experienced as a result of personally caring for the disabled person. The claim shall be in addition to any other claim, including without limitation a reasonable claim for nursing and other care. The claim shall be based upon the nature and extent of the person’s disability and, at a minimum but subject to the extent of the assets available, shall be in the amounts set forth below:

1. 100% disability, $100,000

2. 75% disability, $75,000

3. 50% disability, $50,000

4. 25% disability, $25,000

What is a Statutory Custodial Claim?

This statute does not sufficiently define the meaning of several terms, and this lack of clarity has made the statute difficult to apply. The Illinois Supreme Court has recognized that the statute is unclear, but found that the statute was not so vague as to violate due process. See In re Estate of Jolliff, 199 Ill.2d 510, 771 N.E.2d 346 (2002).

Dedicated to the One I Love

The statute does not actually define what it means for a person to "dedicate himself or herself." The Oxford American Dictionary definition of "dedicate" is "to devote one’s time and energy to a special purpose." Despite this basic definition, two Illinois courts examining the meaning of the term have reached differing results.

In re Estate of Hoehn, 324 Ill.App.3d 627, 600 N.E.2d 899 (3d Dist. 1992), the claimant moved into an apartment that was across the hall from her sister and provided care for her sister for one and a half years. After her sister’s death, the claimant filed a statutory custodial claim against her sister’s estate. The appellate court rejected the custodial claim on several grounds, including that the claimant had not "dedicated" herself to the care of her sister, stating "that a fair reading of the statute would lead to the conclusion that the factors to be considered in determining dedication are those listed in the statute itself." These include: lost employment opportunities, lost lifestyle opportunities, and emotional distress experienced from caring for the disabled person. The court held that claimant did not meet any of the three factors, and as a result, did not "dedicate" herself to the care of a disabled person.

In re Estate of Rollins, 269 Ill.App.3d 261, 645 N.E.2d 1026 (1st Dist. 1995), was a different result. The half-sister, and guardian, of a disabled person attempted to assert a statutory custodial claim against the decedent’s estate. In deciding whether the sister had "dedicated" herself to caring for the disabled person, the court stated that "the statute does not define what constitutes ‘dedication’ beyond living with and personally caring for the disabled person for at least three years." In specifically rejecting Hoehn, the court explained that the determination of whether a claimant suffered loss of employment opportunities, loss of lifestyle opportunities, or emotional distress is probative, but the statute is not read to mean that a claimant may not recover in the absence of those factors.

Both Hoehn and Rollins agree that the factors listed in the statute are relevant in determining whether an individual has dedicated him or herself to the care of a disabled person. The Hoehn court believed the factors exclusively determined "dedication," while Rollins held these factors as only probative. Rollins suggested that only a showing that the claimant lived with and cared for a decedent for three years could be sufficient to prove "dedication." Under rules of statutory construction, Hoehn appears to be correct and the factors listed in the statute must be examined. The statute states that the claim "shall take into consideration" the three factors listed in the statute. The word "shall" indicates a mandatory obligation, unless context indicates otherwise. People v. Richardson, 104 Ill.2d 8, 470 N.E.2d 1024 (1984). So it appears that a court must examine the three factors stated in the statute, which are more than probative as suggested by Rollins.

In defending an estate against a statutory custodial claim, a representative should argue that Hoehn provides the correct interpretation. It would be more difficult for a claimant to prove that she meets one of the three factors listed in the statute, in addition to having to show that he or she lived and cared for the disabled person for three years.

The Second Appellate District has recently determined that the caretaker need not provide all the care. In re Estate of Lower, 365 Ill.App.3d 469, 848 N.E.2d 645 (2d Dist. 2006). The decedent’s wife suffered a stroke and was unable to physically provide for the total needs of a disabled person. As a result, the wife hired a nursing service. The court held that she had sufficiently dedicated herself based on testimony that she spent all her time watching the now-deceased and monitoring his needs and that she was the only person able to communicate his needs to caretakers. In addition, she testified she slept next to him and awoke several times each night to alert the caretaker to any problem he was having. The court held that this is sufficient dedication for decedent’s wife to recover under the custodial claim statute.

What is a Disabled Person?

The statute does not define a disabled person, and there are more than just a few definitions. One obvious choice could be the Probate Act (hold that thought) but what about the Illinois Identification Card Act, 15 ILCS 335 et seq., the Illinois Public Aid Code, 305 ILCS 5/3-1 et seq., the Senior Citizen and Disabled Persons Property Tax Relief and Pharmaceutical Assistance Act, 320 ILCS 25/3.14, the homicide statute 720 ILCS 5/19-1 or the criminal neglect statute, 720 ILCS 5/12-21(b)(2)? Each statute has the same basic definition of "disabled person" but there are differences. No further research is necessary because the Second Appellate District has answered this question too in Lower. The definition of a "disabled person" found in the Probate Act, 755 ILCS 5/11a-2, is the definition of a "disabled person" that is to be used when making a statutory custodial claim. A disabled person is one who is 18 years or older who because of a mental deterioration or physical incapacity is not fully able to manage his person or estate.

How Much Disability?

The statute provides for four choices from twenty-five percent disability to one hundred percent disability with a set amount ($25,000.00 to $100,000.00). These are minimums subject to the extent of estate assets "available." Does this mean that a one hundred percent disability claim could be over $100,000.00? Could a twenty-five percent disability claim be over $100,000.00? The Illinois Supreme Court looked at this in Jolliff. Although recognizing that "18-1.1 is not a model of clarity in legislative drafting," court held that the statutory requirements and percentages are not unreasonably vague as to violate due process. It reasoned that the statute was not so vague that it cannot be applied, and stated that whether the family member met the requirements of the statute and the "percentage of disability are fact questions for the jury." (citing 755 ILCS 518-6, which states that any interested person may demand a jury trial on a claim against an estate). The Lower court affirmed that the decedent was previously 100% disabled based on the overwhelming evidence, but there is no indication how that determination was made.

Just the Facts

When it gets down to it, whether or not a person was disabled, and the degree of that disability, is a very fact-intensive issue. What do the medical reports say? What will the doctor say? Is there another doctor with a different opinion (or can one be retained)? What were the activities, or lack of activity, of the alleged disabled person? What do other family members have to say about it? What about other caretakers? Don’t forget those photos and even the video from Christmas. Did the kids get Christmas presents and cards? Was she paying her own bills? Was the care giving appropriate or necessary or inadequate? Was it full time or part time? This list could go on and on - and will if it’s a true contest.

The Dead-Man’s Act

In any contested estate, consideration must be given to the effect of the Illinois Dead-Man’s Act, 735 ILCS 5/8-201, which disqualifies adverse testimony of an interested party about matters that the deceased, or a person under legal disability, could have refuted. To further these goals, the Dead-Man’s Act states:

In the trial of any action in which any party sues or defends as the representative of a deceased person or person under a legal disability, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability.

The goals of the Dead-Man’s Act are to protect a decedent’s estate from fraudulent claims and to equalize the position of the parties in regard to the giving of testimony. At its basic level, the Act is a bar to evidence which only a deceased person could have refuted.

The Dead-Man’s Act is applicable to statutory custodial claims, and was used by the representative in Rollins to prevent the claimant from testifying regarding her care of decedent, the residency of decedent, and the extent of decedent’s disability. The appellate court held that without claimant’s testimony, the record did not provide the proof required to establish a statutory custodial claim. As demonstrated by Rollins, the Dead-Man’s Act can be an effective tool in defending against a statutory custodial claim; however, two limitations may prevent the Act from being utilized. First, the Dead-Man’s Act only applies to parties directly and immediately interested in the claim. As a result, other parties, such as heirs of the claimant, may be allowed to testify regarding care of the decedent. Second, it is also possible for a party utilizing the Dead-Man’s Act to waive the Act’s protection.

The Act prohibits the testimony of any "adverse party or person directly interested in the action" regarding any conversation with the deceased or to any event which took place in the presence of the deceased. A witness is incompetent to testify only if the witness is "directly interested" in the action. A "directly interested" witness is one whose interest in the judgment is such that a pecuniary gain or loss would come to him directly as the immediate result of the judgment. Michalski v. Chicago Title & Trust Co., 50 Ill.App.3d 335, 399, 365 N.E.2d 654 (1st Dist. 1977). For example, the spouse of a person who is incompetent to testify under the Dead-Man’s Act has also been held to be disqualified from testifying. In re Estate of Babcock, 105 Ill.2d 267, 473 N.E.2d 1316 (1985).

Despite disqualifying spouses, Illinois courts have held that the children of a person who is incompetent to testify may nevertheless testify under the Dead-Man’s Act. Bernardi v. Chicago Steel Container Corp., 187 Ill.App.3d 1010, 543 N.E.2d 1004 (1st Dist. 1989); In re Estate of Shanahan, 59 Ill.App.3d 269, 375 N.E.2d 508 (3d Dist. 1978). In Bernardi, the appellate court allowed the testimony of a minor child who witnessed an accident between his father, who was the defendant, and the decedent. The appellate court held that despite the father being incompetent to testify under the Dead-Man’s Act, the child was not disqualified because he was not "directly interested" in the action. According to the court, if the testimony of the witness does not show direct, certain and immediate pecuniary interest, the witness’ interest, if any, goes merely to his or her credibility and not to his or her competency to testify.

Illinois courts have also held that in certain circumstances parties can waive the protections of the Dead-Man’s Act. First, and most obvious, the failure to object to a witness’ testimony on grounds of the Dead-Man’s Act waives that issue as to that person. Kelly v. First State Bank of Princeton, 81 Ill.App.3d 402, 401 N.E.2d 247 (3d Dist. 1980). If neither party raises any question on appeal concerning the competency of either the respondent or the petitioner to testify as to transactions and conversations with the decedent, the matter is also deemed waived. In re Estate of Goffinet, 318 Ill.App.3d 152, 742 N.E.2d 874 (4th Dist. 2001).

The incompetency of a witness can also be waived under Section 5/8-201(a) and Section 5/8-201(b) of the Dead-Man’s Act:

(a) If any person testifies on behalf of the representative to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person with legal disability, an adverse party or interested person, if otherwise competent, may testify concerning the same conversation or event.

(b) If the deposition of the deceased or person under legal disability is admitted in evidence on behalf other representative, any adverse party or interested person, if otherwise competent, may testify concerning the same matters admitted in evidence.

In Hoem v. Zia, 159 Ill.2d 193, 636 N.E.2d 479 (1993), the decedent’s widow filed a malpractice action against a physician for negligently failing to diagnose and prevent a fatal heart attack. The trial court allowed the defendant-physician to testify concerning his examination of decedent. The Illinois Supreme Court upheld the admissibility of the testimony under 5/8-201(a) of the Dead-Man’s Act, reasoning that the plaintiff had opened the door to the testimony by introducing defendant’s notes regarding his conversation with decedent and expert testimony by another physician that insinuated that the decedent visited the defendant for treatment of a heart related problem. The plaintiff had waived defendant’s incompetency under the Dead-Man’s Act to testify to his examination of the decedent.

In Rollins noted above, which involved a statutory custodial claim, the trial court did not err by excluding testimony by the claimant concerning the extent of her care of the decedent, the decedent’s residence, and decedent’s physical and mental condition. On appeal, the claimant did not argue that her excluded testimony was not within the scope of the Dead-Man’s Act, but instead argued that she was competent to testify under 5/8-201(a). The defendant had called no witnesses to testify but the claimant argued that the defendant opened that door for her testimony regarding the care of the decedent by stipulating to the admissibility of documents she offered, such as guardian accounts, that contained references to such matters. The court rejected this argument and held that it would not expand the definition of the Act to provide an exception when the representative merely allows the adverse party to enter exhibits which contain references to an event in the decedent’s presence.

Statements made by a party testifying on behalf of the representative on cross-examination can waive protections of the Act under 5/8-201(a), but only if cross-examination is not within scope of direct examination or was not a proper attempt to impeach the witness. In re Estate of Kline, 245 Ill.App.3d 413, 615 N.E.2d 1329 (3d Dist. 1993). Incompetency of a witness under the Dead-Man’s Act is not waived, however, if the testimony presented by the protected party, either by another witness or on cross-examination, does not concern a discussion or event that took place in the presence of the deceased. Bernardi.

The Act is intended not to disadvantage the living, but to put the parties on an equal footing. Morse v. Hardinger, 34 Ill.App.3d 1020, 341 N.E.2d 172 (4th Dist. 1976). Allowing a party to present testimony regarding conversations or events in the presence of the decedent, without allowing a witness rendered incompetent under the Dead-Man’s Act to present similar evidence, would be inequitable. Hoem, 159 Ill.2d at 193. As a result, a party seeking to disqualify a witness from testifying regarding conversations with the decedent or events that took place in the decedent’s presence must be careful not to open the door and waive the protection of the Dead-Man’s Act.

Will There Never Be an End to This?

In addition to the unanswered legal questions concerning the statutory custodial claim, it should be intuitively obvious even to the most casual observer that whether one represents the estate, the claimant, or heirs and legatees, these claims can be difficult. The fact issues will be intense and the evidentiary and procedural issues will be complex and tricky. Depending upon the circumstances, the caregiver may be able to generate considerable sympathy, even though the care she gave may not have been given in the expectation of a financial reward. As any attorney who has ever been involved in these kinds of cases knows, estate contests excite contentious emotions that can rise over the level of intensity of a child custody case. All litigants should be prepared for a time-consuming, emotional and expensive proceeding.

Ronald J. Broida, B.A., University of Illinois, 1966; J.D. University of Illinois, 1969, is a Director of the DuPage County Bar Association and former editor of The Brief. He is President of Broida and Associates, Ltd. (Naperville) which concentrates its practice in civil litigation at the trial and appellate levels in state and federal courts, municipal representation and a transactional practice.

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