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02/23/98 DORIS ZELENKA v. THOMAS J. KRONE

DORIS ZELENKA, PLAINTIFF-APPELLANT,
v.
THOMAS J. KRONE, ESQ., AND DAVID M. SVEC, ESQ. DEFENDANTS-APPELLEES.



MODIFIED UPON DENIAL OF REHEARING Appeal from the Circuit Court for the 18th Judicial Circuit, DuPage County, Illinois No. 96--L--0009 Honorable Hollis L. Webster Judge, Presiding

The opinion of the court was delivered by: Justice Breslin delivered the opinion of the court:

On appeal, we are asked to determine whether section 5/13--214.3(d) of the Limitations Act (Act)(735 ILCS 5/13--101 et seq. (West 1996)) applies to a cause of action for legal malpractice when the suit is based on an invalid inter vivos trust and the cause of action accrued after the client's death. The second issue we must determine is whether the applicable statute of limitations precludes the beneficiary's claim. We hold that section 5/13--214.3(d) only applies to probate assets and it does not apply to the inter vivos trust in the instant case. We also hold that the two-year statute of limitations under section 13--214.3(b) is not a bar to the beneficiary's cause of action. Accordingly, we reverse and remand.

FACTS

The defendant, Thomas Krone, drafted an inter vivos trust for Ernest Zelenka in which Ernest named his wife, plaintiff Doris Zelenka, as a co-beneficiary to "one-half (1/2) of all real estate held under the terms of this trust." Krone also prepared a will for Ernest that left the residuary of Ernest's estate to his son and nephew. Under the terms of the trust any property owned by Ernest that was not otherwise disposed of pursuant to the trust passed to his estate and then through the residuary clause of his will. Doris's attorney, David Svec, reviewed the trust and advised Doris that it was a valid Disposition.

Ernest died in April of 1993, and his will was admitted to probate on July 28, 1993. The publication of claims that was issued by the estate indicated that all claims had to be filed by January 28, 1994. On December 27, 1993, Ernest's son and nephew, acting as beneficiaries of the estate, notified the trustee of the inter vivos trust that Doris took no interest as a beneficiary of the trust. They claimed that the trust improperly characterized Doris's interest in "real estate" rather than a "beneficial interest in real estate." Doris's attorney, William Grossmann, received a copy of this notification and on December 30, 1993, sent a letter to Krone. It informed Krone that the trust's validity was being questioned and asked him to contact Grossmann immediately. On February 4, 1994, Doris entered an agreement with Grossmann to retain his services for any claims against Ernest's estate.

On January 4, 1996, Doris filed a legal malpractice claim against Krone and Svec. Krone and Svec moved to dismiss the complaint pursuant 735 ILCS 5/2--619 (West 1996), asserting that the six-month statute of repose in section 5/13--214.3(d) of the Act barred the cause of action. The court found that the cause of action accrued on December 30, 1993, and held that the suit was barred by the two-year statute of limitations found in section 5/13--214.3(b) of the Act (735 ILCS 5/13--214.3(b) (West 1996)). Doris appeals.

STANDARD OF REVIEW

A motion to dismiss admits all facts well-pleaded in the plaintiff's complaint. Village of Riverwoods v. BG Ltd. Partnership, 276 Ill. App. 3d 720, 658 N.E.2d 1261 (1995). Where the grounds for dismissal do not appear on the face of the pleadings, a motion to dismiss pursuant to section 2--619 of the Code of Civil Procedure should be supported by affidavits. 735 ILCS 5/2--619 (West 1996); Waterford Executive Group v. Clark-Bardes, Inc., 261 Ill. App. 3d 338, 633 N.E.2d 1003 (1994). On appeal from an order dismissing a complaint, this court applies the de novo standard of review. Benbenek v. Chicago Park District, 279 Ill. App. 3d 930, 665 N.E.2d 500 (1996).

ANALYSIS

The primary issue on appeal is whether section 5/13--214.3 (d) governs this case when a beneficiary of an inter vivos trust files a legal malpractice claim against the trust's drafter after the settlor's death.

In general, the statute of limitations in a legal malpractice action is two years. 735 ILCS 5/13--214.3(b) (West 1996). However, effective January 1, 1991, section 5/13--214.3(d) of the Act established:

(d) 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." 735 ILCS 5/13--214.3(d)(West 1992).

Subsection (d) was removed from the Code by an amendatory act dated March 9, 1995. 735 ILCS 5/13--214.3(d)(West 1996).

Doris contends that section 5/13--214.3(d) is inapplicable because the malpractice claim involves an inter vivos trust and subsection (d) ...


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