Legal Question in Wills and Trusts in Illinois

Inadmissible as Evidence

I am due in court next week regarding a piano that was gifted to me. I am fortunate enough to have the giver testify in my behalf as a witness to what took place with regards to the piano. It is alleged that I have no right to the piano because it was willed to another individual, but the piano was given away before the original owner died. The plaintiff has obtained an attorney, and he is asking the court to dismiss my witneses testimony pursuant to the Dead Man's Act, civil procedure 735 ILCS 5/8-201. What is this act and how does it apply to the case when the piano was given away before the person passed away? From what I have learned in dealing with your website in the past, isn't there a thing called ''ademption'', which makes the piano no longer a part of the estate if it was given away before the original owner died? Please help. I have benefited from your assistance in the past and would love to hear your response to the above. Thanks in advance,

L.S.


Asked on 4/23/04, 2:04 pm

1 Answer from Attorneys
Cyndi Perez Trostin

Re: Inadmissible as Evidence

My first question is whether you are appearing in probate court or municipal court. Is the estate suing you for the return of the piano, or is it the individual (personally) who was named in the will? It makes a difference.

Regardless, I would advise you to speak to an attorney regarding your matter. I recall answering some of your questions regarding this situation in the recent past.

In answer to your question about the Dead Man's Act, it is a statute that limits the evidence or testimony of persons who had dealings with the deceased prior to his death. However, there is an exception to this act that says that facts regarding the heirship of a decedent can not be barred. Your situation may fall under this exception. Only the judge will be able to make that determination.

If the case is in the probate court, the Probate Act seems to be on your side, as it says a number of times that the court will hear testimony regarding property that the estate is claiming should be returned to it.

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Answered on 4/23/04, 5:04 pm


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