## Facts

- John Abens, a married man with three children, had a long-term extramarital relationship with Patricia Murray beginning in 1968 or 1969 and continuing until Abens’s death in 1981.
- During the relationship, Abens gave Murray gifts and financial support, including money, cars, jewelry, and clothing.
- In 1976, Murray left her marital home and moved into an apartment leased in the name of Ann Magnuson, Abens’s sister-in-law.
- Magnuson paid the rent on the apartment, and Abens reimbursed her for about a year.
- Abens’s will made Magnuson a coadministrator of his estate and included a specific bequest of $400,000 to Magnuson.
- In 1983, Murray sued Magnuson seeking to impose a constructive trust on the $400,000 bequest, alleging that Magnuson had promised Abens she would “look after” Murray after Abens’s death and that Magnuson abused a confidential relationship with Abens by keeping the money.
- Nearly a year after filing suit, Murray died. Her son-in-law, A. Theodore Kamberos, as independent administrator of Murray’s estate, was substituted as plaintiff.
- To support the constructive-trust theory, Kamberos relied largely on testimony describing conversations with Abens involving Murray, Magnuson, and Murray’s daughter, Nora Kamberos.
- Magnuson invoked the Illinois Dead Man’s Act and argued the witnesses were incompetent to testify about conversations or events involving Abens.
- The trial court barred the conversation-based testimony under the Dead Man’s Act. With no remaining admissible proof to support the alleged promise or misuse of a confidential relationship, the court granted summary judgment for Magnuson.

## Issues

1. Whether the Illinois Dead Man’s Act barred testimony by the involved witnesses about conversations or occurrences involving decedent John Abens when offered to support the constructive-trust claim.
2. Whether, after excluding the Dead Man’s Act-barred evidence, the remaining record created a genuine issue of material fact sufficient to defeat summary judgment and support imposing a constructive trust on the $400,000 bequest to Magnuson.

## Decision

- The appellate court affirmed the circuit court’s summary judgment for Magnuson.
- The court held the Dead Man’s Act rendered the proffered conversation/occurrence testimony involving Abens incompetent and therefore unusable to oppose summary judgment.
- With that evidence excluded, plaintiff lacked admissible proof of the promise, agreement, or abuse of a confidential relationship needed to support a constructive trust.

## Legal Principles

- Illinois’s Dead Man’s Act disqualifies certain interested persons (and those testifying on behalf of such interests) from testifying about conversations with, or events occurring in the presence of, a decedent when the testimony is offered against a party whose rights come from the decedent, unless a statutory exception applies.
- In ruling on summary judgment, a court considers only evidence that would be admissible at trial; evidence barred by the Dead Man’s Act cannot create a triable fact question.
- A constructive trust is an equitable remedy imposed to prevent unjust enrichment where property is retained through fraud, duress, undue influence, or abuse of a confidential or fiduciary relationship; it must be supported by clear and convincing proof.
- A claim that a will beneficiary should hold a bequest for another’s benefit requires admissible evidence showing more than a moral obligation or generalized intent to “take care of” someone; the claimant must show conduct that equity treats as wrongful (such as a proven promise tied to a confidential relationship and resulting unjust enrichment).

## Conclusion

The Illinois Appellate Court affirmed summary judgment for the will beneficiary, holding that the Dead Man’s Act barred the key testimony about the decedent’s conversations and, without that inadmissible evidence, the plaintiff could not prove a promise or abuse of a confidential relationship sufficient to impose a constructive trust on the $400,000 bequest.


Kamberos v. Magnuson, 510 N.E.2d 112, 156 Ill. App. 3d 800 (1987)