Good grief! The Illinois Dead Man’s Act (“Act”) is livelier than one might think. On its face it looks to be a straightforward evidentiary rule. In practice, however, its application is nuanced and the statutory language is vague. Evidentiary questions implicating the Act can occur in nearly all civil proceedings. All civil practitioners should be mindful of the Act and know when its application may render testimony incompetent. Accordingly, the goal of this article is to briefly explain when and to whom the Act applies and discuss how Illinois courts have determined what actions or inactions comprise an “event” as used in the Act.
The Act’s Language and Purpose. A good starting point for any article about a statute is the statute itself. The Act reads as follows:
“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, except in the following instances…”
The Act, generally speaking, does not prevent (i) testimony from a person rendered incompetent to testify if the opposing party has opened the door to that “conversation” or “event” (ii) testimony to lay foundation for authenticity of documents; and (iii) testimony as to heirship.1
The Act’s purpose is to prevent a witness testifying falsely when the witness knows his testimony cannot be rebutted by the decedent.2 When and how the Act applies to accomplish that purpose is less clear. The language of the Act makes it clear that testimony from adverse or directly interested parties may be barred if it regards “conversations” and “events” in the decedent’s presence. While the term “conversation” is self-explanatory, it is less clear what “event” means as used in the Act and, consequently, how the trial court would define an “event’ in the context of a given case.
Who is Incompetent to Testify? From the text of the Act, it is evident that only adverse parties and directly interested parties may be rendered incompetent to testify. Interested parties are those that could realize economic gain or loss from the proceeding.3 Moreover, the witness must be directly interested; therefore, spouses of a witness rendered incompetent to testify are also barred from testifying as are shareholders of an interested party, but prospective heirs of a person, because of their contingent interest, are competent to testify.4 The Act does not prohibit testimony from disinterested parties. The net result is that only unwitnessed conversations (or events) between the decedent and an adverse or directly interested party are off limits.5
What is an Event? Because of the Act, a witness may be incompetent to testify on one subject but may testify on another. For instance, the spouse of a plaintiff would be incompetent to testify as to a conversation between the plaintiff and the deceased defendant. However, the spouse could testify as to the plaintiff’s disability after an injury or other like matters not involving the decedent. Determining what an incompetent witness may testify to is less clear when the subject matter is an “event” that took place in the presence of the deceased as opposed to a “conversation.”
Interestingly, a prior version of the Act, did not refer to “events,” but instead referred to “transactions.” 6 After an exhaustive analysis of the terms “event” and “transaction,” the Fourth District in Zorn v. Zorn, 126 Ill. App. 3d 258, 263, (4th Dist. 1984), determined that “event” included “all of the connected incidents and conversations leading up to” the signing of the deed.7 In Zorn, the plaintiff alleged that the defendants procured a deed from the decedent through undue influence and sought to have the same held invalid. Id. Prior to trial, the Court granted plaintiff’s motion in limine and excluded all testimony by the defendants regarding conversations and transactions with the decedent. During trial, the plaintiff called a defendant as an adverse witness and examined her on an event that took place in the presence of the defendant. The defendant testified regarding who prepared the deed, how the deed was executed, and the lack of payment for the deed. To rebut that testimony, the defendants attempted to explain fully the “event” by testifying about conversations with the decedent that occurred months prior to the event in question. The trial court barred defendants’ testimony.
On appeal, the Fourth District inquired what the Act meant by Event. After its analysis, the appellate court reversed the trial court and ruled that the defendant could testify as to conversations with the decedent months prior to the execution of the deed. The court rationalized that those prior conversations were part of the event because an “event” “included all of the connected incidents and conversations” leading up to the execution of the deed.8 Zorn suggests that an event is not limited to one moment in time, but may comprise a series of instances that create an event.
Unlike Zorn, other Illinois courts have construed the term “event” far more narrowly. For instance, in Rerack v. Lally and Balma v. Henry, two auto accident cases, Illinois courts have determined that the “event” taking place in presence of the deceased was the accident or collision itself.9 In each of those cases, the witnesses were rendered incompetent to testify to the actual collision, but could testify “to the time period, however short, just prior to the collision” or the conditions of the vehicle and the weather, and the claimant’s observations prior to the impact of the collision.10
Hartman v. Townsend, 169 Ill. App. 3d 111, (1988) applied the Act in a different context. In that case, the issue was whether the decedent’s tender of $20,000.00 to defendant was a gift to defendant’s wife or whether the defendant was unjustly enriched after using the funds for his benefit. To show that the transfer was a gift, the defendant’s spouse testified regarding her previous living arrangements with the decedent.11 The plaintiff’s attorney argued that defendant’s spouse’s testimony violated the Dead Man’s Act because it concerned an event in the presence of the deceased. The appellate court affirmed the trial court’s ruling to allow the testimony because “a continued relationship over some period of time” was not an event but rather more of a “status” than a happening or an occurrence.12
One would even think that an “event” would require some type of action or occurrence. That is not true according to the Illinois Supreme Court. In Gunn v. Sobucki, the Illinois Supreme Court analyzed whether the Act applied to an event that did not occur. There, the Court construed the event as the “transfer of possession of a coin collection” of which payment (or nonpayment) was a detail.13 The Court held that “one cannot break down an event until one discovers a detail did not occur and then dismiss the entire event as a “nonevent.” The Court did not distinguish between events and “nonevents” because it was nothing more than a semantic exercise.14 Nonetheless, the court seemed to implicitly acknowledge that an “event” is composed of multiple details and is not a stand-alone occurrence.
It is clear from the cases above that Illinois courts have viewed “events” as singular and multifaceted occurrences. From the cases cited above, it seems clear that in tort cases involving a collision, courts are willing to isolate the event as just the collision. However, in cases involving deals or transactions, courts apply the definition in Zorn consider multiple incidents comprising or leading up to the event. As unsatisfying as it may be, the definition of an “event” as used in the Act is fact based determination to be made on a case-by-case basis.
In any event (whatever that may be), an attorney confronted by a Dead Man’s Act analysis should be mindful to expand or narrow the “event” in question to include or exclude testimony for his or her client’s benefit. For instance, an attorney may argue that a run of the mill rear-end collision is not an “event” that should be limited to the moment of impact but instead includes the occurrences precipitating the accident and the conduct occurring after impact. Likewise, it could be argued that an “event” does not include all of the incidental negotiations culminating in a transaction, but should be limited to the moment of acceptance and execution of the agreement. Necessarily, any argument made regarding the Act will be a fact specific endeavor.
One thing is for sure, the Dead Man’s Act is still breathing. Litigable issues regarding its application and verbiage live in Illinois courtrooms and are likely to unearth themselves at some point during the civil practitioner’s career. An attorney should be prepared to spot a Dead Man’ Act issue or his case might just end up in the morgue.
1. 735 ILCS 5/8-201 (a-d).
2. Hoem v. Zia, 159 Ill. 2d 193, 201, (1994) .
3. Nardi v. Kamerman, 196 Ill. App. 3d 591, 600-01, (1990); Bernardi v. Chi. Steel Container Corp., 187 Ill. App. 3d 1010, 1017-18 (1989).
4. In re Estate of Babcock, 105 Ill. 2d 267 ; In re Estate of Teehan 287 Ill. App. 58, (1936), Ackman v. Potter 239 Ill. 578, (1909); In re Estate of Franke, 124 Ill. App. 2d 24, (1970).
5. Vazirzadeh v. Kaminski, 157 Ill. App. 3d 638, 645, (1st Dist. 1987).
6. Zorn v. Zorn, 126 Ill. App. 3d 258, 263, (4th Dist. 1984).
8. Id. at 261-264.
9. Rerack v. Lally, 241 Ill. App. 3d 692, 695 (1992); Balma v. Henry, 404 Ill.App.3d 233, 241 (2010).
10. Balma, at 241; Rerack at 695.
11. Hartman v. Townsend, 169 Ill. App. 3d 111, (1988)
12. Id. at 117.
13. Gunn v. Sobucki, 216 Ill. 2d 602, 610-11
Patrick Boland is an attorney at Momkus McCluskey Roberts LLC and practices general civil and commercial litigation. Mr. Boland has a range of legal experience including, but not limited to, litigating breach of fiduciary duty claims, closely held business disputes, construction lawsuits, and trust and estate contest