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Will Drafter

Panel OKs legal-mal suit against will drafter

By Pat Milhizer
Law Bulletin staff writer

The independent executor of a will did not improperly extend the deadline for filing a legal malpractice suit against the firm that represented the deceased when he found new creditors and served them notice to present estate claims, the 1st District Appellate Court held Tuesday.

The ruling clarifies the statute of limitations for claiming legal-malpractice when the damage occurs after the death of the person who received the legal services, the plaintiff’s attorney said.

In 2006, Alexander Koepp hired Chicago attorney Barbara J. Sullivan of B.J. Sullivan & Associates to prepare his will. Koepp’s will provided that his North Side home could be sold to his caretaker, Erik Jaason, for $150,000.

But the plaintiffs contended that neither Jaason nor Sullivan realized that the home was held in joint tenancy with Koepp’s wife, giving the wife ownership of the property after Koepp’s death. Complicating matters, when Koepp died, his wife was in a nursing home and was unable to put a will together.

Koepp sued Sullivan and her firm on Dec. 4, 2007, alleging legal malpractice. Sullivan responded with a motion for involuntary dismissal, saying that the lawsuit was time-barred.

Cook County Circuit Judge James D. Egan granted Sullivan’s motion, and Jaason appealed.

In an opinion written by Justice Thomas E. Hoffman, the Appellate Court unanimously reversed the trial court.

The justices interpreted section 13-214.3 (d) of the Code of Civil Procedure, which says that when an injury doesn’t occur until after the death of a person who received the legal services, a lawsuit may be filed within two years after the person’s death. But if the deceased person’s will is admitted to probate court within that two-year period, the legal malpractice lawsuit must be brought within the time for filing claims against the estate.

In the case of estates, claims must be filed within six months from the date of publication of a death notice or three months from the date of delivering notice to known creditors, whichever time period is later. Notices of Koepp’s death were published starting on May 31, 2007, resulting in a deadline of Dec. 1, 2007, for claims on the estate.

Jaason, who also is the independent executor of Koepp’s estate, filed his lawsuit three days after that published deadline.

On Feb. 7, 2008, Sullivan filed a motion to dismiss. On that same day, Jaason — in his capacity as independent executor of the estate — filed 17 ”notice to creditor” forms advising Koepp’s creditors that any estate claims must be filed by May 9, 2008.

Jaason argued that because of the deadline in his notices, his legal-malpractice filing in December 2007 was timely.

Citing the deadline listed in the newspaper, the defendant contended that the Probate Act doesn’t allow estate representatives to establish different deadlines for different creditors. The defendants said that the act allows just one statutory notice to creditors and one deadline to file claims against an estate by any creditor.

The Appellate Court disagreed, noting the ”whichever is later” language in the statute. The court said that mailed and hand-delivered notice to known creditors establishes a three-month deadline that may be later than the six-month deadline that is available to known and unknown creditors through public notices.

So, the representative of an estate can mail notices to known creditors that set a different deadline from the newspaper notice date for filing claims, the Appellate Court held.

Hoffman also wrote that the justices ”are not unmindful” that Jaason essentially created the second deadline for filing claims against Koepp’s estate by issuing the 17 creditor notices on the same day that the defendants filed a motion to dismiss.

”However, there is no evidence in the record that would allow us to conclude that those notices were fraudulent as a matter of law,” Hoffman wrote.

Jaason was represented by Elliot R. Schiff of Schiff Gorman LLC. Schiff said that Hoffman properly interpreted the statute, which ”clearly means that there can be two different dates” for the deadline to contest the estate.

Sullivan was represented by Sheldon A. Brenner of Brenner, Ford, Monroe & Scott Ltd. Sullivan said that she was disappointed by the decision, and that she now has to decide whether she will file a motion for rehearing or for leave to appeal to the Illinois Supreme Court.

”I think this is kind of an area of the law that really has not come up before,” Sullivan said.

Justices Themis N. Karnezis and Leslie E. South concurred.

Erik Jaason v. Barbara J. Sullivan and B.J Sullivan & Associates, No. 07 L 013513.

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