Dead-Man’s Act, Hearsay, And Other Dull Subjects

Probate litigation is different from most other litigation in one critical way: by definition, one party to the transaction is either dead or mentally disabled. As a result, presumptions and certain rules of evidence take on much greater importance.

The Dead-Man’s Act, 735 ILCS 5/8-201, begins 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 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 [certain enumerated instances].

In determining whether the Dead-Man’s Act applies to particular evidence, it is important to read the language of the statute carefully. The Statute is limited to parties aligned in a particular way and to certain types of evidence. The exceptions can be critical. In Citation proceedings, the Court does have the discretion (and is usually deemed) to call a party as the Court’s witness, so as to avoid the bar of the Act. Unless a party is called as the Court’s witness, there is independent testimony by a disinterested witness, or the Estate “opens the door” by introducing testimony which can then be contradicted, a party may lose a case or be unable to assert an otherwise valid claim because of the bar of the Act.

Even if a party gets past the hurdle of the Dead-Man’s Act, the evidence may be barred by the Hearsay Rule. Hearsay is a statement offered in evidence to prove the truth of the matter asserted. In most Probate litigation, the key question is whether the statement is offered to prove the truth of the matter asserted or whether it is offered to prove some other fact or aspect of the case, such as the decedent’s or ward’s state of mind. A full discussion of hearsay is beyond the space available for this article. Keep in mind, however, that it gives the estate a second shot at barring admission of testimony related to purported statements of the Decedent.

When evidence is lacking, cases are often decided by presumptions. The key Illinois decision on presumptions came in a Probate case, Franciscan Sisters Health Care Corporation v. Dean, 95 Ill.2d 452, 448 N.E.2d 872, 69 Ill.Dec. 960 (1983).

“[T]he term “burden of proof” encompasses both the burden of producing evidence that will satisfy a judge of the existence of an alleged fact and the burden of persuading the trier of fact that the alleged fact is true. [Citation omitted]. The burden of persuasion does not shift but remains with the party who initially had the benefit of the presumption. . . .

The prevailing theory regarding presumptions that Illinois follows and Diederich speaks about is Thayer’s bursting-bubble hypothesis: once evidence is introduced contrary to the presumption, the bubble bursts and the presumption vanishes. [Citation omitted] . . .

The amount of evidence that is required from an adversary to meet the presumption is not determined by any fixed rule. A party may simply have to respond with some evidence or may have to respond with substantial evidence. If a strong presumption arises, the weight of evidence brought in to rebut it must be great. [Citation omitted].

Thus, a presumption will decide the case if there is insufficient evidence to the contrary to rebut the presumption. Once sufficient evidence is produced and the presumption “bursts,” the trial commences as if there never was a presumption in the first place, and each of the parties bears its respective burdens of proof on all issues.

This material may seem rather dry and technical, but these rules decide more Probate cases than the evidence. In the next article, I will bring together issues discussed here with those related to joint tenancies and breach of fiduciary duty to demonstrate how they apply to real cases.

© 1999 by Cary A. Lind, all rights reserved