The Trusted Adviser November 2009 | Volume 2 - Number 9



Decedents' Estates

Jaason v Sullivan, 389 Ill App 3d 376, 906 NE2d 125, 329 Ill Dec 280 (1st D 2009), reh'g den.

Facts:The plaintiff, Jaason, filed a legal malpractice action against the Sullivan law firm for its preparation of a will for Alexander Koepp. Koepp's will provided that upon his death, his residence could be sold to Jaason if he desired to purchase the property. However, the property Jaason could purchase was held in joint tenancy with Koepp and his wife. Therefore, Jaason argued the defendants deviated from their duty and failed to adhere to the applicable standard of care in failing to recognize the property was held in joint tenancy and would pass to Koepp's wife outside of Koepp's estate.

As their responsive pleading the defendants filed a motion for involuntary dismissal, alleging that Jaason's action was time barred pursuant to provisions of Section 13-214.3(d) of the Code of Civil Procedure. The circuit court granted the motion and Jaason appealed.

Holding:Reversed and remanded. The appellate court had to determine whether dismissal is proper as a matter of law. The court used Section 13-214.3(d) to answer the question and it stated, "when the injury caused by the act or omission does not occur until the death of the person for whom the professional services were rendered, the action may be commenced within two years after the date of the person's death unless letters of office are issued or the person's will is admitted to probate within that two-year period, in which case the action must be commenced within the time for filing claims against the estate or a petition contesting the validity of the will of the deceased person, which ever is later, as provided in the Probate Act of 1975." 735 ILCS 5/13-214.3(d).

The court first looked to what the time for filing a petition contesting the validity of a will would be in this particular case. The court stated a petition contesting the validity of a will must be filed within six months of the will's admission to probate. 755 ILCS 5/8-1(a). Koepp's will was admitted to probate and letters of office were issued to the Jaason as independent executor of Koepp's estate on February 22, 2007. Therefore, the time for filing a petition contesting the validity of Koepp's will expired on August 22, 2007, and because Jaason filed the legal malpractice on December 4, 2007, he lost the opportunity to contest the validity of Koepp's will.

The court's remaining question was whether the action was commenced within the time for filing claims against Koepp's estate. The court referred to Section 18-3(a) of the Probate Act, which provides in part "&€¦date shall not be less than six months from the date of the first publication or three months from the date of the mailing, whichever is later&€¦." Publication began on May 31, 2007, and mailings filed and sent on February 7, 2008. The applicable section of the Probate Act allows for the later of the two dates for publications and mailings. Therefore, any claims against the estate would have had to been filed before May 9, 2008. Jaason filed his action on December 4, 2007, well before the May deadline. For these reasons the appellate court reversed and remanded the decision of the lower court.

The court did recognize that Jaason was the independent executor of Koepp's estate and caused the issuance of notices to go out on February 7, 2008. Nonetheless the court stated there was no evidence in the record to conclude the notices were fraudulent as a matter of law.






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[Last update: 10-21-09]