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IL: Period of repose may bar claim before plaintiff is aware of injury

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

Illinois: Period of repose

Student Contributor: Rachel Vincent

Facts: Marie Wackrow is suing attorney for legal malpractice. The attorney was hired by Marie’s brother (trustor) to draft an amendment to his trust. The amendment stated that Marie was to get turstor’s home, or in the event that the home was sold before his death, she was to get $300,000. Marie alleges that the attorney failed to conduct a sufficient title search which would have revealed the actual owner of the home was not the trustor individually, but was a land trust in which trustor had sole beneficial interest. Trustor died in August of 2002 and his will was admitted to probate on October 23, 2002. Plaintiff made a claim against trustor’s estate for the property she was promised under the amendment but the estate denied her claim on October 24, 2003. Plaintiff filed her malpractice complaint on December 27, 2004. Defendant filed a motion to dismiss plaintiff’s complaint arguing that the complaint was not timely filed because it was not brought within the applicable statute of limitations.

Issue: Whether the injury caused by the attorney’s malpractice occurred upon the trustor’s death or when the administrator denied plaintiff’s claim.

Ruling: The Supreme Court held that the injury to Marie did not occur until the trustor died; therefore the legal malpractice claim was barred because of a special repose period. The court found that there was no merit to plaintiff’s argument that because professional services were rendered on her behalf as a third-party beneficiary, and because she is still alive, the injury caused by plaintiff’s legal malpractice occurred when the administrator denied her claim. The Court stated that if plaintiff’s reasoning were to be applied, “no claim against an estate would be barred until the death of each intended beneficiary of a will or trust and such a result would be contrary to the legislative intent behind a state of repose”.

Lesson: Relevant injury occurred at trustor’s death because the trust amendment was intended to take effect after he died. Up until trustor died, there could not have been any injury.

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Posted in: Illinois