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Minor M. Scott Iii, As Personal Representative For the Estate of Maureen K. Scott, Deceased v. Chuhak & Tecson

September 26, 2011

MINOR M. SCOTT III, AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF MAUREEN K. SCOTT, DECEASED, PLAINTIFF,
v.
CHUHAK & TECSON, P.C., STEPHEN M. MARGOLIN AND DAVID SHINER,
DEFENDANTS.



The opinion of the court was delivered by: Judge Ronald A. Guzman

MEMORANDUM OPINION AND ORDER

Plaintiff has sued defendants for legal malpractice. The case is before the Court on defendants' motions to strike plaintiff's expert evidence and for summary judgment. For the reasons set forth below, the Court grants in part and denies in part the motion to strike and grants the motion for summary judgment.

Facts

Maureen Scott is plaintiff's deceased wife. (Answer Am. Compl. ¶ 11.) Maureen and her sister Diane Shah, are the daughters of Milton, who is also deceased, and Ruth Kiver. (Id.) Defendants Margolin and Shiner are attorneys with defendant Chuhak & Tecson, an Illinois law firm that has done estate planning work for the Kivers since at least 1973. (Pl.'s LR 56.1(b)(3)(B) Stmt. ¶¶ 2-5; see Defs.' LR 56.1(a)(3) Stmt., Ex. 9, Amendment Number Ten Milton S. Kiver Living Trust Restatement of Trust Preamble.) Among the instruments they prepared for the Kivers are the Milton S. Kiver Grantor Trust ("MGT"), the Ruth A. Kiver Grantor Trust ("RGT), the Ruth A. Kiver Wealth Trust ("RWT") and the Ruth A. Kiver Wealth Trust II ("RWT II"). (See Defs.' LR 56.1(a)(3) Stmt., Ex. 6, MGT Signature Page; id., Ex. 7, RWT Signature Page; id., Ex. 8, RWT II Signature Page; Am. Compl., Ex. 7, RGT Signature Page.)

In relevant part, the MGT documents state: "Subject to Article V on the Contingent Marital Trust and the LPA Share provisions, upon [Milton's death] the trust estate, as then constituted, shall be divided into separate trusts of equal value . . . one . . . for each [of Milton's daughters] then living and one . . . for the then living descendants, collectively, of each deceased [daughter]." (Defs.' LR 56.1(a)(3) Stmt., Ex. 6, MGT § 6.) The contingent marital trust provision states that: [If Ruth survives Milton and] any portion of the trust estate is finally determined to be includible in [Milton's] estate for Federal estate tax purposes, the trustee as of the date of [Milton's] death shall set aside out of the trust estate so includible in [Milton's] taxable estate, . . . as a separate trust for the benefit of [Ruth], the smallest pecuniary amount which, if allowed as a Federal estate tax marital deduction, would result in the least possible Federal estate tax being payable by reason of [Milton's] death, after taking into account transfers of any other property which qualify for a marital deduction.

(Id. § 5.) The MGT documents name Diane as trustee, but state that each beneficiary of a separate trust shall become a co-trustee of that trust upon his/her thirtieth birthday. (Id. Preamble, § 12.4(c).) They also give the trustee discretion to "distribute to or use for the benefit of each beneficiary of a separate trust" some or all of the income and principal of the separate trust "as the trustee deems necessary or advisable for the education, health, maintenance and support" or "the best interests" of the beneficiary. (Id. § 7.1.) In addition, the documents state that if a separate trust beneficiary dies before his/her trust is completely distributed, "such separate trust or the remainder thereof shall be distributed to or for the benefit of any . . . of . . . the beneficiary's heirs at law . . . in such proportions and upon such terms, conditions and trusts as such beneficiary may appoint by his or her will." (Id. § 7.2.)

The RGT documents name Diane as trustee and give her the discretion, during Ruth's lifetime, "to distribute to or use for the benefit of [Ruth's living] descendants" some or all of the trust principal and income as she deems "necessary or advisable for their . . . education, health, maintenance and support." (Am. Compl., Ex. 7, RGT Preamble, §§ 4.1-4.2.)

The RWT documents name Milton as trustee and Maureen and Diane as successors. (Def.'s LR 56.1(a)(3) Stmt., Ex. 7, RWT Preamble, § 11.4(a).) They also provide that during Ruth's lifetime, the trustee "may . . . distribute to or use for the benefit of . . . [Ruth's then-living] descendants" some or all of the trust income or principal as the trustee "deems advisable for their respective education, health, maintenance and support." (Id. §§ 5.1-5.2.)

The RWT II documents name Diane as trustee and state that she may, during Ruth's lifetime, "distribute to or use for the benefit of . . . [Ruth's then-living] descendants" some or all of the trust income or principal as the trustee "deems advisable for their respective education, health, maintenance and support." (Def.'s LR 56.1(a)(3) Stmt., Ex. 8, RWT II §§ 4.1-4.2.)

Viewed favorably to plaintiff, the record shows that defendants represented Maureen for estate planning from October 2004 until her death in 2007. (See Pl.'s Ex. E, Defs.' Resps. Pl.'s First Req. Admit Facts & Genuineness Documents No. 19; Pl.'s Ex. O, Letter from Margolin to Maureen (Oct. 28, 2004); Answer Am. Compl. ¶ 61.) During that time, defendants also represented Diane, both individually and as trustee of the MGT, RGT, RWT and RWT II. (Answer Am. Compl. ¶ 63; Pl.'s Ex. J, Trost Report 18.)

On July 21, 2005, Milton died. (Pl.'s LR 56.1(b)(3)(B) Stmt. ¶ 6.)

On August 16, 2005, Ruth, Diane, Maureen and plaintiff attended a meeting with defendants concerning Milton's estate. (Id. ¶ 10.) During the meeting, defendants gave them an eighteen-page chart summarizing "the significant features" of the Kivers' estate plans. (See Pl.'s Ex. M, Kiver -- Summary of the Estate Plan as of July 2005 1.) Among other things, the chart says: (1) the MGT

(a) trustee has the discretion, during Milton's lifetime, to distribute the trust's principal and income for the beneficiaries' education, health, maintenance and support and, (b) upon Milton's death, the trust estate will be used to create a marital trust and, if tax concerns so militate, a contingent marital trust for Ruth, and upon Ruth's death, any contingent marital trust will be distributed as appointed in her will and the remaining trust assets will be "[d]ivide[d] . . . into separate trusts for the benefit of each of the [Kivers' daughters] and one for the then living descendants of each deceased [daughter]"; (2) the RGT trustee has the discretion, during Ruth's lifetime, to distribute the trust's principal and income for the beneficiaries' education, health, maintenance and support; (3) the RWT trustee has the discretion, during Ruth's lifetime, to distribute the trust's principal and income for the education, health, maintenance and support of the Kivers' descendants; and (4) the trustee of the RWT II has the discretion, during Ruth's lifetime, to distribute the trust's principal and income for the education, health, maintenance and support of the Kivers' descendants. (Id. at 5, 7, 14-15.)

On March 9, 2007, Maureen signed an amended will that defendants had prepared. (Answer Am. Compl. ΒΆ 61.) Among other things, it states: "I give all the rest . . . of my property and estate, . . . excluding any property over which I may at any time have a power of appointment" to plaintiff. (Am. Compl., Ex. 11, Maureen's Am. Will 6.) Her prior will, which had been prepared by a non-party nearly twenty years earlier, did not contain an ...


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