Illinois Appellate Court Affirms Summary Judgment in Favor of the Estate on Claimed Defendant by Dead Man’s Act

On Feb. 16, 2017, Kevin and Anita Crawford died in an automobile crash along with one of their children. The remaining two children were placed in the care of Anita’s parents. Anita’s father, Irwin Schmidt, was named the executor of their estate on April 10, 2017.

On Aug. 4, 2017, Wayne Crawford, Kevin’s father, filed a claim against both Kevin and Anita’s estate, alleging that they each jointly and severally owed him $223,529.55 for money they had borrowed from Crawford beginning in 2005. It was alleged that these loans were for groceries, utility bills and debt payments.

Crawford also claimed that he leased a vehicle for Kevin and Anita and paid it off after their deaths.

Crawford produced a 3-page handwritten log of the disbursements, which he claimed was kept contemporaneously as they borrowed as well as statements from a bank showing checks disbursed to Kevin and Anita from his home equity and checking accounts and release documents for the car.

In addition, he produced affidavits from himself and his wife attesting to the fact that the money was intended as a loan and Kevin and Anita intended to repay it.

On March 13, 2018, Schmidt filed a motion for summary judgment against Crawford’s claim, asserting that the Dead Man’s Act prevented Crawford from establishing that he had loaned the money to Kevin and Anita and that any disbursements must be presumed to be gifts as Crawford could not establish that Kevin and Anita understood the money to be loans.

In addition, Kevin was an owner on some of the accounts, meaning the money given to him from the accounts belonged to him in the first place.

Schmidt moved to strike the affidavits Crawford submitted. The probate court granted the motion to strike, finding the Dead Man’s Act barred it because “[t]estimony by an adverse party on his own behalf regarding events which took place in the presence of the deceased is inadmissible.”

The probate court, having considered that the affidavits which authenticated the log of the loans were stricken from the record, granted summary judgment in favor of Schmidt. Crawford appealed.

In the appeal, he challenged the striking of his affidavits, arguing that they merely testified to the personal knowledge of himself and his wife about Kevin and Anita’s intent. The appellate court disagreed, emphasizing that the relevant section of his wife’s affidavit was “wholly conclusory” simply asserting “personal knowledge” of their intentions with no support of an explainable basis. The appellate court found that the affidavit did not satisfy the requirements of Illinois Supreme Court Rule 191(a) and so was properly struck.

For his own affidavit, Crawford did not argue that the Deadman’s Act did not apply, but claimed that he fell under an exception (Section 8-401), which allows account books that form the basis of a claim and defense to be admitted and authenticated by their owner in an affidavit.

The appellate court disagreed, noting that even if the log of disbursements did fall under that exception, the log does not clearly indicate that they were intended as a loan not a gift. In addition, a “book account” as used in the statute (Section 8-401), is understood by the Illinois Supreme Court to be “the book containing an entry of transactions in the store, factory or office, as they occur in the regular order of business.”

The appellate court found that Wayne’s handwritten log of disbursements to his son and daughter did not qualify.  Accordingly, the appellate court affirmed the circuit court’s decision granting summary judgment in favor of the estate.

Wayne Crawford v. Irwin Schmidt, 2019 IL App (1st) 182703 (Dec. 26, 2019).

Kreisman Law Offices has been handling probate litigation, guardianships, estates and trusts planning, commercial litigation and business and corporate litigation for individuals, families and businesses for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Maywood, Forest Park, Crystal Lake, Cary, Bensenville, Prospect Heights, Northfield, Glenview, Winnetka, Lincolnshire, Buffalo Grove, Wheeling, Deerfield, Vernon Hills, Rolling Meadows, Rosemont, Arlington Heights, Lyons, Stickney, Bedford Park, Evergreen Park, Hickory Hills, Palos Heights, Crestwood, Alsip, Markham, South Holland, Hazel Crest, Country Club Hills, Tinley Park, Orland Park, Chicago (West Pullman, Roseland, Mount Greenwood, Chatham, Calumet Heights, Hyde Park, Fuller Park, Douglas, Little Village, Bucktown, Logan Square, Irving Park, Portage Park, Near North Side, Wicker Park, West Rogers Park), Des Plaines, Schaumburg, Schiller Park, Addison, Villa Park and Glen Ellyn, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.

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