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The Illinois Dead-Man’s Act Explained

Updated on
October 28, 2019
Article written by
Attorney Kevin O'Flaherty

The purpose of this article is to explain the Illinois Dead-Man’s Act (735 ILCS 5/8-201).  The Illinois Dead-Man’s Act is a statute that prevents parties to litigation from testifying about their own conversations with a deceased person if that conversation would provide evidence beneficial to the party testifying. One of the primary purposes of the Dead-Man’s Act is to prevent fraudulent claims in Illinois probate litigation,  will contests, and guardianship disputes

When Does the Illinois Dead Man’s Act Apply?

The Dead-Man’s Act bars a witness’ testimony if all of the following are true:

  1. The witness has a financial interest in the outcome of the case, or is an adverse party to the party raising the objection based on the Dead Man’s Act; 
  2. The witness’ testimony is intended to benefit the witness; and 
  3. The witness’ testimony refers to a conversation with a deceased or legally disabled individual or an event taking place in such individual’s presence.

What Are the Exceptions to the Illinois Dead Man’s Act?

The Illinois Dead-Man’s Act will not bar a witness’ testimony in the following situations:

  • If no one objects to testimony that would otherwise be barred by the Dead-Man’s Act, the objection will be waived and the testimony will be admitted into evidence.
  • If anyone testifies on behalf of the executor or administrator of the deceased individual’s estate or the representative of the legally disabled individual regarding a conversation with the deceased or legally disabled individual, or an event that took place in the presence of the protected party, this opens the door for other interested and adverse parties to submit testimony that would otherwise be barred by the Dead-Man’s Act.
  • If an executor, administrator, heir or legatee (i.e., the beneficiary of the will) of the deceased or disabled individual submits the deposition of the deceased or disabled individual for admission into evidence, other interested or adverse parties are allowed to testify regarding the same matters as those that were admitted into evidence.  
  • If a claim or defense is founded on a written record or other document, a witness may testify that the entries in the written record were made by the deceased person if the entries of the deceased person were made in the ordinary course of his or her employment for the witness.  
  • The Illinois Dead-Man’s Act does not bar testimony regarding any facts relating to the deceased person’s heirship.  

The Illinois Dead-Man’s Act Explained
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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