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.
The Circuit Court and the Appellate Court held that the legal malpractice claims were barred by Section 214.3(d). The court’s explanation for its ruling is quoted here:
¶ 43 Here, William’s last will and testament was admitted to probate on May 5, 2017. Letters of office were issued to Judith that same day, and a statutory notice of publication announced November 11, 2017, as the deadline for bringing any claims against William’s estate. This was in accordance with section 18-3 of the Probate Act, which states that “claims may be filed on or before the date stated in the notice, which date shall not be less than 6 months from the date of the first publication or 3 months from the date of mailing or delivery, whichever is later,” and which provides that “any claim not filed on or before that date is barred.” 755 ILCS 5/18-3 (West 2016).
¶ 44 Taken together, the effect of these provisions is that the deadline for filing claims against Chuhak was November 11, 2017. The second amended complaint was not filed until over one year later, on January 3, 2019. On appeal, plaintiffs argue that the dismissed claims were nevertheless timely by operation of the relation-back doctrine or, alternatively, under the discovery rule, the exception for fraudulent concealment, and the doctrine of equitable tolling.
Comment: If you suspect wrongdoing by a relative in an estate planning situation, you should contact a malpractice lawyer as soon as possible so that the six month statute of limitations is not overlooked. I have seen this mistake many times in my career. Missing the statute of limitations often bars a case where the lawyers had significant liability on the malpractice claim. This is a trap for the unwary and an area that can trip up a cautious lawyer. If you have any questions about the statute of limitations for a legal malpractice claim, call me so we can discuss it.
Ed Clinton, Jr.