What Is The Dead Man’s Act And How Does It Affect Personal Injury Cases?

Illinois’s version of the “Dead Man’s Act,” is an unusual but enduring rule of evidence that limits what interested witnesses may testify to about conversations with—or events observed by—a deceased person. Enacted in 1973, it serves to both prevent potential fabrication of testimony and ensure fairness in civil proceedings.

Though rooted in common law dating back centuries, the Act is still actively used in modern personal injury litigation—especially vehicle collision cases involving deceased parties. At John J. Malm & Associates, our top-rated Illinois wrongful death lawyers have successfully handled complex personal injury and wrongful death cases across Illinois, including those complicated by unique evidentiary rules like the Illinois Dead Man’s Act. We understand how critical it is to preserve and present admissible evidence when a key party is deceased, and we use our knowledge of Illinois law to protect our clients’ rights and secure full and fair compensation.

When the Dead Man’s Act Applies

Under 735 ILCS 5/8‑201, in any civil suit where one party is suing or defending as the representative of a deceased person, any “adverse” or “interested” witness is prohibited from testifying about:

• A conversation they personally had with the deceased, or
• Any event the witness observed in the deceased’s presence,

if that testimony would benefit the witness or harm the estate.

Who counts as an “interested” party?

Anyone with a financial interest in the outcome—spouses, heirs, beneficiaries, corporate officers—may be deemed “interested.” However, mere fiduciary roles without personal gain (e.g., executor being paid as executor, not as an heir) typically do not suffice under the Act.

What types of evidence are barred?

• Oral statements to the witness by the deceased (e.g., “He said the light turned red.”)
• Observations by the witness in the deceased’s presence (e.g., “He jerked the steering wheel.”)

Why the Dead Man’s Act Matters in Personal Injury Lawsuits

Common Scenario: Fatal Car Crash

Consider a case where Driver A, now deceased, gets into a car crash with Driver B. Driver B and Driver A’s heirs might present conflicting stories. Under the Dead Man’s Act, Driver B (an interested party) cannot testify about whether Driver A admitted fault or if Driver A ran a light—or even what Driver A did leading up to the crash—if that testimony favors him.

Practical Effects

• Defendants may file motions for summary judgment, arguing that without Driver B’s testimony, there’s no admissible evidence of negligence.
• Courts have sided with this approach in multiple cases. For example, in Richardson v. Ward, 2019 IL App (5th) 180444-U, Driver B’s testimony was barred and the case was dismissed due to lack of admissible evidence.

Exceptions to the Dead Man’s Act

Illinois law recognizes several key exceptions intended to maintain fairness and allow relevant testimony under appropriate circumstances.

Waiver by Opening the Door

If someone testifies for the decedent’s estate about a conversation or event, interested parties become eligible to testify about the same subject.

Bringing in the Decedent’s Own Testimony

If the decedent’s deposition is admitted into evidence (e.g., submitted by the executor), interested witnesses may also testify regarding the same matters.

Written Records

Records created by the deceased in the ordinary course of business are exceptions. Witnesses may testify concerning entries made by the decedent if they are tied to such documents.

Heirship Testimony

Testimony about heirship matters, like who the heirs of the estate are, is always permitted regardless of interest.

No Objection Means Waiver

If no one objects at trial, even admissible-but-prohibited testimony is allowed.

How Courts Apply the Rule

Richardson v. Ward (2019)

• Facts: Rear-end collision, decedent died before trial; no eyewitnesses besides plaintiff.
• Outcome: Dead Man’s Act barred the only testimony placing fault. Summary judgment was granted.

Eyster v. Conrad (2020)

• Facts: Car accident; decedent defendant’s deposition was submitted.
• Holding: The court waived the Dead Man’s rule, allowing the plaintiff to testify about conversations/events that were mentioned in the deposition.

Bramlett v. Vandersand (2020)

• Facts: External-light accident; defendant (elderly mother-in-law) made admission.
• Holding: Her admission was allowed as an exception to the Act because it was a party admission—even posthumously.

Mossholder v. Statler (2020)

• Facts: Car accident; passenger testified about driver’s sudden medical condition.
• Outcome: Allowed because the event occurred in another vehicle, outside the decedent’s presence; so the decedent could not have refuted it.

Special Issues in Personal Injury Context

Use by Defense Attorneys

The Act is often a powerful weapon for defense counsel—especially in car accident cases—since even the plaintiff can be barred from testifying about key events.

Rarely Bars Medical Records

In medical malpractice cases, most evidence comes from records, imaging, and expert testimony—not oral admission to a doctor—so the impact of the Act is limited.

Yet, if a plaintiff attempts to bring in new dialogue or events occurring in the deceased’s presence, these may be blocked unless one of the exceptions applies.

What The Dead Man’s Act Means for Personal Injury Cases

1. Restricted litigation avenues. Plaintiffs must find third-party witnesses or records—relying on oral stories from the deceased can be fatal.
2. Heightened pre-trial discovery importance. Depositions of decedents take on strategic urgency.
3. Active defense strategy. Effective use of summary judgment motions can win cases on evidentiary grounds alone.
4. Fairness objectives. The rule attempts to balance out a missing voice—the deceased—while still allowing flexibility via exceptions.

Best Practices for Plaintiffs

In order to overcome the Dead Man’s Act, experienced Illinois personal injury lawyers:

• Investigate disinterested witnesses. Eyewitnesses with no stake can testify freely.
• Obtain decedent’s depositions—either before death or posthumously—for use in court.
• Invoke admissible exceptions, such as party admissions or written records.
• Avoid opening the door by claiming hearsay hours in depositions, unless beneficial.

Contact the Award-Winning Illinois Wrongful Death Lawyers at John J. Malm & Associates

Navigating the complexities of the Illinois Dead Man’s Act requires experience, strategy, and a deep understanding of how evidentiary rules impact personal injury litigation. If you or a loved one has been injured in an accident involving a deceased party—or if your loved one passed away in a fatal accident—you don’t have to face these legal challenges alone. At John J. Malm & Associates, our skilled personal injury attorneys know how to protect your rights and build a compelling case, even when critical testimony is limited by law. Contact us today for a free consultation and let us help you pursue the justice and compensation you deserve.