Cary A. Lind, P.C. - Arlington Heights Probate Attorney

PAUL THE PAINTER VS. THE DEAD-MAN'S ACT - PART 1

Cary A. Lind, P.C. - Arlington Heights Probate Attorney

PAUL THE PAINTER VS. THE DEAD-MAN'S ACT - PART 1

In a previous article I discussed claims for personal services. In that article I warned:

The Claimant has two key hurdles to overcome in proving any claim for personal services: the Dead-Man's Act and the Hearsay Rule. It may be difficult or impossible for the Claimant to prove an express agreement with a decedent without direct testimony by the Claimant of the decedent's statements or promises. Many claims which would otherwise be and should be allowable cannot be proved or sustained because of those evidentiary rules.

I also discussed an alternative claim based on implied contract (quantum meruit) if an express agreement could not be proved.

The Dead-Man's Act states in part: "[i]n 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 . . ." [with certain exceptions not applicable here]

Co-counsel and I recently tried a case where a number of these issues played out in the courtroom. Here is the story:

Paul did occasional painting and handyman work for June, an older customer. June paid Paul for each job he did for her. In November, 1995, for reasons that we could only guess, June took Paul to lunch and proposed a deal to him. If Paul would take care of her and her home and keep her out of a nursing home, June would leave Paul $100,000 in her will. Paul accepted the offer. From that day forward, Paul did everything he could to satisfy June and uphold his end of the deal. Paul stopped in to see June three times a day. He looked in on her in the morning and unlocked the house, brought in the paper, and helped her with her medication and with breakfast. He stopped by in the late afternoon. He came by at night to lock up. He was at June's beck and call, even in the middle of the night when the furnace went out or on Christmas to drive June to her friends and later pick her up and drive her home afterwards. He took care of all painting and maintenance around her house. June rarely drove, and as time passed, she did not drive at all. Paul took June to many of her doctor appointments and drove her on other errands. He also ran errands for her, sometimes two and three times if she did not like what he brought. Approximately two months before she died, June had a new will prepared in which she left Paul $20,000, not $100,000. The will was signed by her two weeks before she died, but it was never properly witnessed and was invalid. She died in June, 1998, approximately two years and seven months after the deal was made. A prior will was admitted to Probate. That will was prepared before 1995 and made no provision for Paul.

Paul met with us to assess his legal rights. We determined that because of the Dead-Man's Act ("the Act"), we would never be able to prove the express contract. We also could not file a statutory custodial claim, because the facts did not fit the requirements for such a claim in several respects. We therefore asked Paul to total up the time that he spent, to apply his customary rates, and to calculate the amount that his services were worth. The total came to approximately $113,000, and we prepared and filed a claim for that amount in June's estate. The estate filed an answer to the claim, and we proceeded to discovery.

At his deposition, Paul testified to his deal with June. Opposing counsel then brought a motion for summary judgment claiming that we could not recover on an implied contract where there was an express contract between the parties. We responded that we could not prove the express contact because of the Act and that there was no alternative for us but to sue on an implied contract. The trial court granted summary judgment in favor of the estate, and we appealed. The Appellate Court reversed the summary judgment, ruling that based on the evidence that was before it and considering that evidence in the light most favorable to Paul, an implied contract had been established. The case was remanded for the trial court to determine the reasonable value of Paul's services.

We completed discovery, and the case went to trial. It was then that Paul again ran straight into the Dead-Man's Act. It was clear that Paul was an adverse party to the estate and that the estate was defending. Therefore, the Act applied. The critical issue was how the court would define the terms "event" and "in the presence of the deceased."

We attempted to have Paul testify to the services that he rendered to the Decedent. The estate objected. The Court sustained the objection and would not allow any testimony of any conversation between Paul and June unless someone else was present. Therefore, on all the occasions when June called Paul to come over or asked Paul to do something, his testimony was barred. Paul also could not testify as to any of the errands he ran with June, since they were normally the only two parties present. (We contacted the doctors' offices, etc., but Paul usually dropped June off, and no one saw Paul bring her.) The Court also barred any testimony about errands that Paul ran outside June's presence even though his testimony would have been that he ran those errands on his own initiative and not at her request. Finally, the court adopted a broad interpretation of the words "in the presence of the deceased." Numerous services that Paul performed around June's home were not actually done "in her presence." For example, when the floors of the home were being redone, June was either in a room other than that where the work was being performed or was out of the house with someone else. Similarly, since June often stayed indoors, we argued that work done to the exterior of the house or the land around the house was not in the decedent's presence. The Court ruled that that testimony was also barred by the Act. Finally, Paul's wife, who was also present on a number of occasions, was similarly barred from testifying to anything regarding the services that Paul performed.

Had trial concluded at the end of the first day, we would have recovered nothing. Fortunately, it did not.

© 2001 by Cary A. Lind, all rights reserved

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121 South Wilke Road, Suite 407
Arlington Heights, IL 60005
Phone: 847-577-0030
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Cary A. Lind, P.C., is in Arlington Heights, Illinois, and serves clients in places including Arlington Heights, Prospect Heights, Schaumburg, Park Ridge, Rolling Meadows, Barrington, Buffalo Grove, Mount Prospect, Palatine, Wheeling, Elk Grove Village, Cook County, Lake County and DuPage County.

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