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Statute of Limitations Bars Estate Planning Malpractice Claim

Illinois has a statute of limitations (2 years from discovery) and a statute of repose (6 years from the alleged negligent act by the attorney). In estate planning matters, Illinois also has another provision 735 ILCS 5/13-214.3(d) which governs injuries that occur on the death of the client.

In 2002, LeRoy Voga retained James Nash, an estate planning attorney, to prepare an estate plan, including a trust. LeRoy Voga passed away on September 26, 2006.

In January or February 2009, plaintiffs, Voga’s children, sued on a number of theories, including legal malpractice. Plaintiffs alleged that the trust caused them to incur estate taxes they would not otherwise have incurred. They voluntarily dismissed the case without prejudice, but refiled the case in February 2010. After lengthy proceedings in the trial court, including the filing of two amended complaints, the trial court dismissed the case pursuant to Section 13-214.3(d).

This is the relevant text of the Illinois Statute of Limitations for attorney malpractice:

(b) An action for damages based on tort, contract, or otherwise (i) against an attorney arising out of an act or omission in the performance of professional services or (ii) against a non-attorney employee arising out of an act or omission in the course of his or her employment by an attorney to assist the attorney in performing professional services must be commenced within 2 years from the time the person bringing the action knew or reasonably should have known of the injury for which damages are sought.

(c) Except as provided in subsection (d), an action described in subsection (b) may not be commenced in any event more than 6 years after the date on which the act or omission occurred.

(d) 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 2 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 2 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, whichever is later, as provided in the Probate Act of 1975.”

The trial court held that the purported injury did not occur until the death of Larry Voga. Therefore, "'since the injury did not occur until the death of Larry Voga, the action must have been commenced within 2 year s of his death, unless letter[s] of office were issued. Letters of office were not issued following Voga's death, rendering the suit untimely."

The plaintiffs argued that Section (d) contains the word “may,” which should be permissive rather than mandatory. The Appellate Court disagreed and cited numerous prior cases, including cases decided by the Illinois Supreme Court. According to the court, “may” really means “shall.”

The court was very careful to review all of the confusing cases under subsection (d) of the Section 214. Given the thoughtful discussion of the statute and the review of the prior caselaw, it is a pity that the case is unpublished.

The case is captioned Voga v. Nash, 2014 Il App (2d) 130750-U.