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Peterson v. Wallach6/26/2000
Appeal from the Circuit Court of Cook County.
Honorable Philip L. Bronstein, Judge Presiding.
Ordinarily, an action for attorney malpractice must be brought "within two years from the time the person bringing the action knew or reasonably should have known of the injury for which damages are sought." 735 ILCS 5/13-214.3(b) (West 1992). Section 13-214.3(c) of the Limitations Act (735 ILCS 5/13-214.3(c) (West 1992)) then provides a repose period and states that except as provided in section 13-214.3(d), no action may be commenced more than six years after the date on which the act or omission occurred. Finally, section 13-214.3(d) (735 ILCS 5/13-214.3(d) (West 1992)) creates an exception to the six-year repose period and states, in part, that where the injury caused by the act or omission does not occur until the death of the person for whom professional services were rendered, the action may be commenced within two years after the date of the person's death. At issue in this case is whether the exception to the six-year period of repose set forth in section 13-214.3(d) is applicable only in those cases where assets of the deceased pass pursuant to the Probate Act of 1975 (Probate Act) (755 ILCS 5/5-1 et seq. (West 1998)), or whether the exception is also applicable where assets of the deceased pass by means of an inter vivos trust.
In Zelenka v. Krone, 294 Ill. App. 3d 248 (1997), the court considered this issue and concluded that the exception to the repose period created by section 13-214.3(d) is applicable only where assets are distributed pursuant to the Probate Act, and that it is not applicable to assets that pass via an inter vivos trust. With respect to the instant case, the circuit court expressed disagreement with the Zelenka court's conclusion but, nonetheless, felt bound to follow it and dismissed count I of plaintiff's complaint as time-barred . We, too, disagree with Zelenka. The clear and unambiguous language of section 13-214.3(d) states that where the injury caused by the act or omission does not occur until the death of the person for whom professional services were rendered, the complainant has two years from the date of that person's death in which to commence an action. There is no language limiting section 13-214.3(d) to assets subject to distribution through probate proceedings or excluding assets that are transferred via an inter vivos trust. Accordingly, we reverse the judgment of the circuit court.
BACKGROUND
Leslee Peterson, plaintiff, the daughter of Ardele and Sidney Petersen, is the sole beneficiary of Ardele's estate, which plaintiff received pursuant to an inter vivos trust. Plaintiff filed her complaint on November 9, 1998, alleging that Stanley J. Wallach, defendant, committed malpractice because he negligently rendered estate planning advice to plaintiff's mother. Specifically, plaintiff alleged that in 1989, Ardele engaged the services of defendant to handle the administration of Sidney's estate. Ardele also requested defendant to recommend estate planning procedures that would minimize death taxes on her estate when she passed away and to maximize the value of assets that plaintiff would receive upon Ardele's death. Plaintiff alleged that defendant undertook to provide such services and recommended that Ardele make substantial taxable inter vivos gifts to plaintiff. In reliance upon defendant's advice, in 1990 and 1991, Ardele made gifts to plaintiff totaling approximately $580,000. According to plaintiff, upon Ardele's death on November 10, 1996, these gifts were "added back" into Ardele's estate for purposes of determining death taxes. As a result, the death taxes due on Ardele's estate were increased by approxima
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