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Casenotes

Illinois
Malpractice; Probate; Trusts

Wackrow v Niemi, 231 Ill 2d 418 (Ill 2008).

Facts:On March of 1993, Frederick Niemi prepared a living trust for plaintiff Marie Wackrow's brother, James Woods. On April 15, 2002, Niemi prepared an amendment to the living trust, which bequeathed Woods' house to Wackrow. Woods died in August 2002, and letters of office were issued and Wood's will was admitted to probate in October 2002. On April 13, 2003, Wackrow made a claim against Wood's estate for the property promised her under the amendment. Woods' estate refused to convey the house to Wackrow, and on October 24, 2003, the probate court denied her claim.

On December 27, 2004, Wackrow filed an attorney malpractice complaint alleging that Niemi failed to exercise reasonable care in creating the trust amendment, because a sufficient title search would have revealed that Woods was not the actual owner of the property, rather title belonged to another trust. Niemi filed a motion to dismiss Wackrow's complaint arguing that it was not timely under 735 ILCS 5/13-214.3(d) (the statute). The trial court agreed and dismissed Wackrow's complaint without prejudice. The appellate court affirmed, and the Supreme Court of Illinois allowed plaintiff's petition for leave to appeal.

Holding:Affirmed. The Supreme Court of Illinois held that under the statute, a plaintiff has two years to file a claim unless letters of office are issued or the will is admitted to probate. If either of those two events occur during the two year period following the death of the client, any action must then be commenced in accordance with time limitations set out in the Probate Act (755 ILCS 5/18-3). Under the Probate Act, the applicable time is no later than the time for filing claims against the estate or the time of filing a petition contesting the validity of the will. The Court explained that a petition contesting validity of a will must be filed within six months of its admission to probate. The lone inquiry a court must make, then, is whether the injury caused by the malpractice occurred upon the death of the client.

In this case, the Court held that the injury caused by the malpractice did occur upon the death of Woods. Because Woods could have revoked or changed the amendment prior to his death, the injury did not occur until his death. Consequently, the statute applies to Wackrow's claim. The Supreme Court of Illinois affirmed the lower court's dismissal of the contesting petition because the claim was not filed until December 27, 2004, which is not within six months of the will's admission into probate. However, it is important to note that the Court recognized that Wackrow was injured by Niemi's failure to do a proper title search, and the only reason the claim was dismissed was because of the untimely filing.

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[Last update: 3-18-09]