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FOURTH DIVISION
February 7, 2002

Cherylee Trenkamp, administrator of the estate of Sam G. Parisi,deceased, appeals from the circuit court's denial of her petition tovacate an order declaring heirship. On appeal, Cherylee contends thatthe trial court erred in denying her petition where there wasinsufficient evidence to find that the deaths of Sam Parisi and CarolParisi were not simultaneous under the "Simultaneous Deaths" sectionof the Probate Act of 1975 (755 ILCS 5/3-1 et seq. (West 1998)) (theAct), and where the court had previously determined that section 3-1of the Act applied to the estate of Carol Ann Parisi. Cherylee alsoargues that the court erred in denying her petition for rehearing andexcluding her expert's affidavit. For the reasons set forth below, wereverse and remand.

On January 20, 1999, Sam Parisi and his daughter, Carol Parisi,were found dead in their home. Both bodies were in various stages ofdecomposition and the police determined that they had been dead forover three weeks. Sam was discovered on the floor in a hallway near aheating vent wearing pajamas and covered with a blanket. The medicalexaminer later determined that Sam's death was due to natural causes,namely, coronary atherosclerosis. Carol was found lying on her bedunder a sheet and was wearing a sweater and pants. Carol's death wasruled accidental from salicylate intoxication. The death certificatesreflect times of death as 3:26 p.m. for Sam and 3:28 p.m. for Carol,which were the times their bodies were discovered.

Sam left a will that bequeathed his entire estate to his wife,Katherine, and, if she predeceased him, to Carol. Katherine died in1993, and Sam had no other children. Carol died intestate, nevermarried and had no children. Cherylee, as Sam's niece and Carol'sfirst cousin, was appointed administrator of both estates in February1999. Carol's and Sam's estates progressed simultaneously, butseparately, through the court system with the same judge. Forclarity's sake, we will review the procedural history of each estateseparately.

In Carol's estate, Cherylee identified that Carol had four otherliving heirs: Cherylee's brother, Randall Sanfilip, and threematernal first cousins, Thomas C. Eckel, Edward M. Eckel and Anna JuneEckel Reimbold. In opening Carol's estate, Cherylee filed anaffidavit of heirship on February 8, 1999, and an amended affidavit onJuly 19, 1999, stating that both Katherine and Sam predeceased Carol. The court entered an amended order declaring heirship based onCherylee's July 19, 1999, affidavit and listed Carol's heirs as herfive cousins and other unknown heirs. On December 14, 1999, the courtentered an order that the administrator was researching the sequenceof Carol's and Sam's deaths and set the matter for a hearing onFebruary 14, 2000. On February 14, the court ordered that, unlessevidence was submitted to the contrary before March 7, 2000, the courtwould apply section 3-1 of the Act and find that Carol survived Sam asto her solely owned property, Sam survived Carol as to his solelyowned property and section 3-1 of the Act applied to all jointly ownedproperty.

Thereafter, Anna June filed a motion to declare the sequence ofdeaths, arguing that there was sufficient evidence to prove that Samdied before Carol. She attached the affidavits of heirship sworn toby Cherylee which stated that Sam predeceased Carol. Further, AnnaJune included the reports of the medical examiner, Dr. Chira, whichdetermined both causes of death. The reports also stated that Sam'sbody was in a moderately advanced stage of decomposition and had nostomach contents while Carol was found in an early state ofdecomposition with fluid in her stomach. However, the autopsy reportsdid not indicate the actual date and time of their deaths or the orderin which they died. An investigator from the Cook County sheriff'spolice department attended the autopsies and reiterated some of themedical examiner's initial findings as to stages of decomposition andstomach contents in a portion of his report. Further, the sheriff'sreport stated that it was Dr. Chira's belief that Carol died at alater date than Sam. Anna June also attached part of the sheriff'sevidence report which described the decomposed condition of thebodies. In response, Cherylee submitted the unsworn opinions of threeexperts who stated that the evidence was insufficient to establish theorder of death. Neither party presented the court with any swornaffidavits, depositions or testimony concerning order of death.

Cherylee also filed a petition to vacate orders declaringheirship, explaining that her initial affidavits of heirship werebased on a telephone conversation between her attorney and Dr. Chirawhere Dr. Chira stated his opinion that Sam died before Carol. However, Cherylee later learned that the medical examiner's reportsfailed to establish the order of death. Because Cherylee now had noevidence to substantiate that Sam predeceased Carol, she requestedthat the court vacate the order of heirship and determine the sequenceof Carol's and Sam's deaths.

After a hearing on this issue on March 27, 2000, the courtentered an order that "Carol is presumed to have survived Sam as toher estate as per statute." Thus, the court must have made thefactual determination that the evidence was insufficient to establishthe order of death and applied section 3-1 of the Act to Carol'sestate. The court also held that "[a]ll pleadings filed concerningorder of death may be used as pleadings in the Estate of Sam Parisi"and vacated the order of heirship of July 19, 1999. A second amendedorder declaring heirship, entered on May 17, 2000, reflected thecourt's finding that section 3-1 of the Act applied and listed Carol'sfive cousins as her only heirs. On August 1, 2000, the court orderedthat the order of heirship previously entered stands.

In Sam's estate, Cherylee filed an affidavit of heirship onFebruary 8, 1999, and the court then entered an order declaringheirship based on this affidavit and listed Carol as Sam's only heir. Cherylee next filed a verified amended petition for probate of a willon July 19, 1999, which gave the estate of Carol as Sam's heir. Following the entry of the order declaring heirship in Carol's estate,Cherylee filed a petition to vacate the order declaring heirship andthe court determination of order of death in Sam's estate on May 17,2000. That petition incorporated by reference, pursuant to courtorder, all documents filed in Carol's estate regarding order of death. After Anna June filed a response, the court denied Cherylee's petitionon August 1, 2000. Cherylee filed a petition for rehearing, attachinga new affidavit from a medical expert stating that the evidence wasinsufficient to establish order of death. Thomas filed an appearancein Sam's estate and both he and Anna June filed responses toCherylee's petition for rehearing. On November 14, 2000, the courtdenied Cherylee leave to file the affidavit and also denied herpetition for rehearing. Cherylee then filed this timely appeal.

Cherylee first contends that in Sam's estate the trial courterred in denying her petition to vacate the order declaring heirshipentered on February 8, 1999, because there was insufficient evidenceto find that the deaths of Sam and Carol were not simultaneous undersection 3-1 of the Act. The original order declaring heirship reliedupon Cherylee's affidavit which stated that Sam predeceased Carol and,therefore, listed Carol as Sam's sole heir. If Sam's and Carol'sdeaths were simultaneous as Cherylee contends, section 3-1 of the Actwould apply. Under section 3-1, as discussed more fully below, Carolcould not inherit from her father and Sam's only heirs would be hisrelatives, Cherylee and Randall. Thus, Cherylee argues, the February8, 1999, order declaring heirship listing Carol as Sam's heir wasincorrect and must be vacated in order to comply with section 3-1 ofthe Act. Thomas responds that this court cannot address this issuebecause Cherylee failed to include a transcript of the hearing in therecord on appeal. Additionally, he argues that the trial court'sdecision was proper and was not against the manifest weight of theevidence.

Even without a transcript of the hearing, we can deduce whatevidence was before the court at the August 1, 2000, ruling andaddress Cherylee's argument. In her petition to vacate filed on May17, 2000, Cherylee incorporated by reference all documents regardingorder of death entered in the estate of Carol Ann Parisi, pursuant tothe court order dated March 27, 2000. Those documents were submittedto and reviewed by the court at the March 27, 2000, hearing in Carol'sestate and included the affidavits of heirship sworn to by Cherylee,the autopsy reports, portions of the sheriff's report and three expertopinions. Further, both parties agree that no other evidence ortestimony was received at the August 1 hearing. Therefore, we willreview the trial court's decision to deny Cherylee's petition tovacate the order declaring heirship based on this evidence.

When reviewing the trial court's ruling, we determined whetherthe court's judgment was against the manifest weight of the evidence. Judgment Services Corp. v. Sullivan, 321 Ill. App. 3d 151, 154, 746N.E.2d 827, 830 (2001); Janus v. Tarasewicz, 135 Ill. App. 3d 936,942, 482 N.E.2d 418, 423 (1985). A judgment is against the manifestweight of the evidence only when an opposite conclusion is apparent orwhen findings appear to be unreasonable, arbitrary, or not based onevidence. Judgment Services Corp., 321 Ill. App. 3d at 154, 746N.E.2d at 830-31.

Section 3-1 of the Act provides in relevant part:

"If the title to property or its devolution dependsupon priority of death and there is no sufficientevidence that the persons have died otherwise thansimultaneously and there is no other provision inthe will *** or other governing instrument fordistribution of the property different from theprovisions of this Section:

(a) The property of each person shall bedisposed of as if he had survived." 755 ILCS 5/3-1(a) (West 1998).

This section of the Act is based on the Uniform Simultaneous Death Act(8B U.L.A. 147 (2001)) and shall be construed and interpreted toeffectuate its general purpose to make the law uniform with thosestates enacting similar statutes. 755 ILCS 5/3-2 (West 1998). Thus,cases from other states adopting the Uniform Simultaneous Death Actare persuasive. In re Estate of Moran, 77 Ill. 2d 147, 149-50, 395N.E.2d 579, 581 (1979).

The purpose of section 3-1 of the Act is to provide substantivelaw to govern the devolution of property under certain circumstances. In re Estate of Moran, 77 Ill. 2d at 150, 395 N.E.2d at 581. Theparty whose claim depends upon survivorship has the burden to provethe order of death by a preponderance of the evidence. In re Estateof Moran, 77 Ill. 2d at 150, 395 N.E.2d at 581. When there is nosufficient evidence that two individuals died other thansimultaneously, each individual's property is distributed as if he orshe had survived the other individual. Each individual's propertypasses to that individual's relatives and not to the other person'srelatives. Uniform Simultaneous Death Act, Prefatory Note, 8B U.L.A.143 (2001); J. Brooks & S. Weissbluth, Heirship, Adoption, andPaternity, in Estate, Trust, & Guardianship Litigation