Statue of Limitations/Repose
Harry Doyle retained the defendants, attorney Thomas Hood and Thomas B. Hood Law Offices, P.C., to prepare his will and a revocable living trust for his disabled wife, Patricia. The living trust established a supplemental trust, with Patricia as its bene-ficiary. Harry executed the necessary documents in December 2011. Upon Harry’s death in January 2012, his son, Michael, became executor of his will and trustee of both trusts. In late 2013, Patricia was admitted to a long-term-care facility. Six months after that, an application for long-term benefits was filed on her behalf before the Department of Human Services. The DHS subtracted a $2,000.00 asset allowance from the supple-mental trust, and imposed a spend-down of the remaining funds. An appeal was filed on Patricia’s behalf, but the DHS found instead that a considerably higher penalty was owed.
Michael, as trustee, sued the defendants for professional negligence in May 2017. He alleged that no penalty would have been assessed if the defendants had created the trust from Harry’s will instead of the living trust. The defendants moved to dismiss, arguing that the claim was time-barred because it was filed more than two years after Harry’s death. The trial court granted the motion, and Michael appealed. The appellate court agreed with the defendants that the two-year statute of limitations applied, since the injury in this case occurred “when the Supplemental Trust could no longer be amended or revoked and was actually funded, both of which occurred upon Harry’s death.” Id. at ¶ 28; (“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 com-menced within 2 years after the date of the person’s death…”), 735 ILCS 5/13-214(d). The appellate court clarified that this exception “’applies instead of […] the six-year statute of repose.’” Id. at ¶ 22, citing Wackrow v. Niemi, 231 Ill. 2d 418, 427 (2008).
(This is for informational purposes and is not legal advice.)