Estate Planning Malpractice

Published on: May 15, 2023

Six Month Statute of Limitations Bars Claims Against Estate Attorneys

The Illinois statute of limitations period governing legal malpractice cases is normally two years. The plaintiff has two years from the discovery of the injury to file suit. Illinois has another provision in the statute, which often protects lawyers involved in estate planning.

5/13-214.3(d) provides that: 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. An action may not be commenced in any event more than 6 years after the date the professional services were performed.

For this reason, in inheritance disputes lawyers will often open an estate and start the claims period running. That leaves the aggrieved party six months to file any claims against the lawyers who drafted the estate plan. Dalessandro v. Quinn-Dalessandro, 2023 IL App (1st) 211119 is one such case. The adult children of the decedent filed a claim against their step-mother within the six month period, but they did not file against the lawyers who drafted the estate planning documents that disinherited them until after the six month period had expired. The provision in the statute is a trap for the unwary practitioner who incorrectly believes he has two years to file a malpractice lawsuit. Nope. He only has six months to file such a claim.

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Published on: May 15, 2017

Ohio Holds That Beneficiaries Do Not Have Standing to Sue the Lawyer Who Drafted the Estate Planning Documents

By The Clinton Law Firm

Meisler was a “potential” beneficiary. She argued that the lawyer who drafted the estate planning documents committed legal malpractice because he did not include certain language in the estate planning documents. In some states a beneficiary can sue the lawyer who drafted estate planning documents. Ohio rejects this concept and holds that only a party in privity with the lawyer (usually the person who retained the lawyer) can file such a lawsuit. The problem is that the person who is in privity with the lawyer is usually deceased. In such cases, privity provides a complete defense to malpractice claims. The Ohio court notes that the executor of an estate might have standing to assert an error that diminished the value of the entire estate. However, the executor would not have standing to sue for an error that impacted the claim of one beneficiary.

The standing doctrine of the Ohio cases is, in my view, too narrow and is unfair to many estate beneficiaries. Obviously, this is an issue that is controversial.

Source: MEISLER v. Weinberg, 2017 Ohio 1563 – Ohio: Court of Appeals, 8th Appellate Dist. 2017 – Google Scholar

Published on: April 7, 2017

In Estate Planning Malpractice Case Plaintiff Seeks Summary Judgment – But Does Not Prevail

By The Clinton Law Firm

This opinion arises in an unusual procedural setting – plaintiff sought summary judgment on liability. Plaintiff claimed that an estate planning attorney erred in drafting a Will. The documents are quoted here:

On August 19, 2006, Elizabeth executed a revised Last Will and Testament presented to her by Defendants. (Id. at ¶¶ 14-16.) For the purposes of this motion, there are three relevant sections to the Last Will and Testament. Section One reads, in pertinent part:

I give, devise and bequeath all of my property of whatever nature, both real and personal, personal effects, household goods, automobiles, and all other items of goods and chattels to my children who survive me in equal shares of substantially equal value, per stirpes and not per capita.

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Published on: June 10, 2016

Virginia Court Holds That An Intended Third Party Beneficiary May Sue Estate Planner For Legal Malpractice

By The Clinton Law Firm

This is another chapter in the long-running battle between beneficiaries of estates and estate planning attorneys. For much of the 19th century if a lawyer made an error in the drafting of an estate planning document, the intended beneficiary could not sue for legal malpractice because the intended beneficiary was not “in privity” with the lawyer. The words “in privity” meant that the intended beneficiary did not have a direct attorney-client relationship with the lawyer. (Of course, in most estate planning matters, the only person with an attorney-client relationship is deceased by the time the error is discovered).

The privity rule was extremely beneficial to attorneys because it meant that they could rarely be sued for legal malpractice. In recent years, courts have chipped away at the privity rule. The courts have acted from the obvious concern that the lawyer who makes a mistake depriving a beneficiary of an inheritance should not be able to hide behind a technicality to escape liability.

In this case, the plaintiff was the Richmond Society for the Prevention of Cruelty to Animals or RSPCA. RSPCA alleged that there was an error in the drafting of a will and the error caused it to lose an expected inheritance of real property.

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