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As part of our service we try to give free information to the public. This page discusses what happens when someone who is part of a lawsuit as either a party to the suit or a witness can no longer testify.

The Illinois Dead Man’s Act applies to lawsuits where one party is deceased, or seriously injured and mentally incapable of testifying. This causes an evidence dilemma. Basically, it’s hard to prove what happened in the dispute because only one party is available to tell their side of the story.

The Illinois Dead Man’s Act says that any party opposing the deceased/injured person cannot testify about any conversation with the deceased/injured person or about any event that happened in their presence. The goal is to prevent a party from lying about what happened in a dispute, since the deceased/injured party isn’t able to contradict them.

The Illinois Dead Man’s Act applies most commonly in cases where the death or injury is the subject of the lawsuit. For example, if a man is killed in a car accident, his wife may sue the other driver on his behalf. However, the Dead Man’s Act would prevent the other driver from testifying that the deceased driver said something to him after the accident before he died.

There are exceptions, of course. If someone not involved in the lawsuit witnessed the bad driving, they would be allowed to testify. Or, let’s say the man in the car accident survived and was interviewed under oath (called a deposition) when the lawsuit began, but he then died before the trial. Because he was able to give his side of the story, the other side could testify about things otherwise prohibited by the Dead Man’s Act.

Here is a not so plain English description of the Illinois Dead Man's Act that one of our lawyers prepared. We are sure that it will make you glad that you never went to law school. If you have any questions about this or need an attorney referral, please contact us at (312) 346-5320.

Illinois Dead Man’s Act

1. § 735 ILCS 5/8-201.  DEAD-MAN'S ACT. 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. 

1. INCOMPETENT TO TESTIFY:  Adverse parties or directly interested persons are incompetent to testify as to conversations with decedent and events occurring in decedent’s presence.  Inversely, other witness’ testimony of the decedent’s statements is admissible because this section only excludes testimony of an adverse party or a party directly interested in the suit.  

1. DEFINITIONS:
1. Person under legal disability.  any person adjudged by the court in the pending civil action to be unable to testify by reason of mental illness, mental retardation or deterioration of mentality.

1. Representative.  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 legal disability.

1. Person “directly interested in the action" or "interested person. 
1. Does not include a person who is interested solely as executor, trustee or in any other fiduciary capacity, whether or not he or she receives or expects to receive compensation for acting in that capacity. 

1. EVENTS AFTER DEATH NOT EXCLUDED.  A party or interested person may testify to facts occurring after the death of the decedent. 

1. PURPOSES.  The act bars only that evidence that could have been refuted by the decedent in order to:  (1) protect decedents’ estates from fraudulent claims, and (2) equalize the positions of the parties in regard to the giving of testimony.

1. EXCEPTIONS.
1. Open the Door.  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 under legal disability, any adverse party or interested person, if otherwise competent, may testify concerning the same conversation or event.

1. Decedent’s Deposition Admitted into Evidence.  If the deposition of the deceased or person under legal disability is admitted in evidence on behalf of the representative, any adverse party or interested person, if otherwise competent, may testify concerning the same matters admitted in evidence.

1. Account Books and Records.  Any testimony competent under Section 8-401 of this Act is not barred by this Section.
1. Sec. 8-401 makes an account book account or any other record or document admissible with appropriate testimony if the claim or defense is “founded” on the document.
   
2. Heirship.  No person shall be barred from testifying as to any fact relating to the heirship of a decedent.

1. PRIVILEGE.  The privilege of invoking the Dead-Man’s Act belongs to the representative of a deceased to assert or waive.

1. Representative Capacity Required. In order for the act to apply, the party must be suing or defending as the representative of the deceased, not as an individual.

1. Waiver.  The Dead-Man’s statute may be waived by the following:
1. Failing to object to the competency of the proposed witness.
2. Failing to object on the proper grounds or in a timely manner.
3. “Opening the door” by calling the adverse party as a witness or introducing the testimony of the deceased. 

1.  Example

Theofanis v. Saffari, 791 N.E.2d 38 (Ill. App. Ct., 1st Dist. 2003):  Patient developed a mass near her heart, and the physician did not warn her of test results during the eights days from the time the physician’s received the test results and time of the patient’s debilitating stroke, which rendered her legally disabled.  The patient’s daughter, in her representative capacity as guardian, brought an action for negligence against the physician.  The appellate court reversed the trial court’s admission of the physician’s notes of his conversations with the patients, which were offered to prove her resistance to all his instructions.  Exception (c) to the Dead-Man’s Act was not applicable because the action was not “founded upon” the medical notes but instead the notes were evidence of alleged negligent acts of the physician, therefore, the notes could not be introduced into evidence.