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First Division
June 26, 2000

No. 1-99-2859

JUSTICE RAKOWSKI delivered the opinion of the court:

Ordinarily, an action for attorney malpractice must be brought "within two years from thetime the person bringing the action knew or reasonably should have known of the injury forwhich damages are sought." 735 ILCS 5/13-214.3(b) (West 1992).⁽¹⁾ Section 13-214.3(c) of theLimitations Act (735 ILCS 5/13-214.3(c) (West 1992)) then provides a repose period and statesthat except as provided in section 13-214.3(d), no action may be commenced more than six yearsafter the date on which the act or omission occurred. Finally, section 13-214.3(d) (735 ILCS5/13-214.3(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 personfor whom professional services were rendered, the action may be commenced within two yearsafter the date of the person's death. At issue in this case is whether the exception to the six-yearperiod of repose set forth in section 13-214.3(d) is applicable only in those cases where assets ofthe 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 bymeans of an inter vivos trust.

In Zelenka v. Krone, 294 Ill. App. 3d 248 (1997), the court considered this issue andconcluded that the exception to the repose period created by section 13-214.3(d) is applicableonly where assets are distributed pursuant to the Probate Act, and that it is not applicable toassets that pass via an inter vivos trust. With respect to the instant case, the circuit courtexpressed disagreement with the Zelenka court's conclusion but, nonetheless, felt bound tofollow it and dismissed count I of plaintiff's complaint as time-barred⁽²⁾. We, too, disagree withZelenka. The clear and unambiguous language of section 13-214.3(d) states that where the injurycaused by the act or omission does not occur until the death of the person for whom professionalservices were rendered, the complainant has two years from the date of that person's death inwhich to commence an action. There is no language limiting section 13-214.3(d) to assetssubject to distribution through probate proceedings or excluding assets that are transferred via aninter vivos trust. Accordingly, we reverse the judgment of the circuit court.

BACKGROUND

Leslee Peterson, plaintiff, the daughter of Ardele and Sidney Petersen, is the solebeneficiary of Ardele's estate, which plaintiff received pursuant to an inter vivos trust. Plaintifffiled her complaint on November 9, 1998, alleging that Stanley J. Wallach, defendant, committedmalpractice 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 theadministration of Sidney's estate. Ardele also requested defendant to recommend estate planningprocedures that would minimize death taxes on her estate when she passed away and tomaximize the value of assets that plaintiff would receive upon Ardele's death. Plaintiff allegedthat defendant undertook to provide such services and recommended that Ardele makesubstantial taxable inter vivos gifts to plaintiff. In reliance upon defendant's advice, in 1990 and1991, 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 estatefor purposes of determining death taxes. As a result, the death taxes due on Ardele's estate wereincreased by approximately $238,000.

ANALYSIS

If the exception to the repose period set forth in section 13-214.3(d) of the LimitationsAct (735 ILCS 5/13-214.3(d) (West 1992)) is applicable only to assets that pass pursuant to theProbate Act, plaintiff's claim is barred by the six-year period of repose set forth in section 13-214.3(c). However, if section 13-214.3(d) is applicable where assets pass pursuant to an intervivos trust, then plaintiff's claim is timely filed. Whether section 13-214.3(d) is applicable toassets that pass pursuant to an inter vivos trust is an issue of statutory construction, which thiscourt reviews de novo (Davis v. Toshiba Machine Co., America, 186 Ill. 2d 181, 183 (1999)). The primary rule of statutory construction is to give effect to the legislature's intent. Antunes v.Sookhakitch, 146 Ill. 2d 477, 484 (1992). "Legislative intent is best evidenced by the languageused by the legislature, and where an enactment is clear and unambiguous a court is not at libertyto depart from the plain language and meaning of the statute by reading into it exceptions,limitations or conditions that the legislature did not express." Kraft, Inc. v. Edgar, 138 Ill. 2d178, 189 (1990). Where the statutory language is clear and unambiguous, the court will notresort to extrinsic aids of statutory construction. People ex rel. Baker v. Cowlin, 154 Ill. 2d 193,197 (1992). Moreover, the statute should be read as a whole and "construed so that no word orphrase is rendered superfluous or meaningless." Kraft, 138 Ill. 2d at 189.

Following are the relevant provisions of the Limitations Act:

"(b) An action for damages based on tort, contract, orotherwise (i) against an attorney arising out of an act or omission inthe performance of professional services *** must be commencedwithin 2 years from the time the person bringing the action knew orreasonably should have known of the injury for which damages aresought.

(c) Except as provided in subsection (d), an actiondescribed in subsection (b) may not be commenced in any eventmore than 6 years after the date on which the act or omissionoccurred.

(d) When the injury caused by the act or omission does notoccur until the death of the person for whom the professionalservices were rendered, the action may be commenced within 2years after the date of the person's death unless letters of office areissued or the person's will is admitted to probate within that 2 yearperiod, in which case the action must be commenced within thetime for filing claims against the estate or a petition contesting thevalidity of the will of the deceased person, whichever is later, asprovided in the Probate Act of 1975." (Emphasis added.) 735ILCS 5/13-214.3 (West 1992).

Section 13-214.3(d) unambiguously states that where the injury caused by the act oromission does not occur until the death of the person for whom professional services wererendered, the complainant has two years from the date of that person's death in which tocommence an action. There is no language limiting it to assets subject to distribution throughprobate proceedings or excluding assets that are transferred via an inter vivos trust. Accordingly,a claimant has two years in which to file a claim "unless" one of two events occurs - eitherletters of office are issued or the will is admitted to probate. If one of those two events occursduring the two-year period following the death of the person for whom services were negligentlyprovided, any action must then be commenced within the time for filing claims against the estate(see 755 ILCS 5/18-3 (West 1998) (claims may be filed on or before the date stated in the notice,which date shall not be less than six months from the date of the first publication or three monthsfrom the date of mailing or delivery, whichever is later)), or within the time for filing a petitioncontesting the validity of the will of the deceased person (755 ILCS 5/8-1(a) (West 1998)(petition contesting the validity of a will must be filed within six months of its admission toprobate)), whichever is later, as provided in the Probate Act. The primary inquiry in determiningwhether section 13-214.3(d) is applicable is whether the injury caused by the act or omissionoccurred upon the death of the person for whom services were rendered, not the manner in whichassets were distributed. Accordingly, where any injury caused by an act or omission does notoccur until the death of the person for whom professional services were rendered, section 13-214.3(d) is applicable regardless of whether the assets are subject to distribution through probateproceedings, an inter vivos trust, or some other mechanism.

Contrary to defendant's contention, the legislative history does not support the conclusionthat section 13-214.3(d) applies only to assets distributed in accordance with the Probate Act. Representative Cullerton stated that the bill of which section 13-214.3(d) was a part created atwo- year statute of limitations with a six-year period of repose. 86th Ill. Gen. Assem., HouseProceedings, May 18, 1990, at 55. Representative Cullerton noted that there were "someexceptions, of course, as in the case where you don't learn about the malpractice in the case ofsay a will or testamentary trust because the error could not be discovered until after the client hasdied." 86th Ill. Gen. Assem., House Proceedings, May 18, 1990, at 56. According to defendant,this and other references during the House debate to wills and testamentary trusts indicate thatsection 13-214.3(d) applies only to wills and testamentary trusts. We disagree. The primaryfocus of the House debate was whether there should be any statute of limitations for attorneymalpractice. One concern that was voiced was whether there would be any recourse for anegligently drafted will because the statute of repose could run before the client died and thenegligence was discovered. Representative Cullerton's statement's were in response to theseconcerns and were in no way an attempt to create an exhaustive list of the various situations towhich section 13-214.3(d) would apply.

Moreover, Representative Cullerton referred only to "wills" generally. However, wherethe gross value of the decedent's estate, "including the value of all property passing to any partyeither by intestacy or under a will, does not exceed $50,000," delivery of the estate may be madeupon affidavit. 755 ILCS 5/25-1 (West 1998). Where the criteria set forth in section 25-1 aremet, the will need not be admitted to probate and no letters of office need be issued.

To accept defendant's argument that section 13-214.3(d) applies only to assets distributedthrough probate would result in disparate treatment of attorneys based on the value of the estateas opposed to the attorneys' conduct. Consider the following:

An attorney prepares two wills, committing the same negligent actin each. Because the first will involves less than $50,000 it isdelivered upon affidavit. The assets are not distributed throughprobate proceedings and no letters of office are issued. Accordingly, the decedent's heirs cannot take advantage of theexception to the statute of repose set forth in section 13-214.3(d)and their malpractice claim is barred. However, the second willinvolves assets greater than $50,000 and it is distributed throughprobate proceedings. In this situation, the decedent's heirs maysuccessfully bring a malpractice claim.

We do not believe the legislature intended such a result. In enacting section 13-214.3(d), thelegislature intended to create an exception to the six-year period of repose whereby attorneyscould be held liable for their acts or omissions in those situations where the injury does not occuruntil the death of the person for whom the professional services were rendered. We see noreason why an attorney who prepares a will involving an estate of less than $50,000, an intervivos trust, or other similar instrument should enjoy greater protection from liability formalpractice than an attorney who prepares a will involving assets greater than $50,000. Moreover, defendant makes no argument regarding why attorneys preparing probated assetsshould enjoy less protection from malpractice claims than attorneys who prepare similarinstruments that differ only in regard to the value of the assets involved. Defendant asks thiscourt to read an exception into the statute that simply is not there.

Defendant next argues that applying section 13-214.3(d) to inter vivos trusts wouldexpand that provision so that any claim generally related to estate planning malpractice could bebrought within the exception to the six-year repose period, including those situations where: (1) areal estate attorney negligently fails to place real property in a tenancy by the entirety; (2) acorporate attorney negligently fails to include a provision in a shareholder agreement requiringthe corporation to purchase stock from the estate of a deceased shareholder; and (3) a personalinjury attorney negligently fails to preserve the testimony of her client through an evidencedeposition prior to the client's death. These situations, however, are not currently before thiscourt and we therefore leave consideration of them until such time as they are.

To the extent that this opinion is inconsistent with Zelenka v. Krone, 294 Ill. App. 3d 248(1997), we decline to follow that decision. In Zelenka, the defendant drafted an inter vivos trustfor Ernest Zelenka in which he named his wife, Doris, as a co-beneficiary to one-half of all realestate held under the terms of a trust. The defendant also prepared a will for Ernest that left theresiduary of Ernest's estate to his son and nephew. Under the terms of the trust, any propertyowned by Ernest that was not otherwise disposed of pursuant to the trust passed to his estate andthen through the residuary clause of his will. Zelenka, 294 Ill. App. 3d at 250. The Zelenka court reasoned as follows:

"Subsection (d) specifically limits the time in which a person maycommence an action to two years unless letters of office are issuedor a will is admitted to probate. In addition, it states that it appliesto actions commenced within the time for filing claims under theProbate Act. Thus, it is apparent from the language of section5/13-214.3(d) that it applies only to legal malpractice actionsrelated to claims against an estate or petitions contesting thevalidity of a will under the Probate Act. It does not pertain to thoseassets that are not subject to distribution in accordance with theProbate Act." Zelenka, 294 Ill. App. 3d at 252.

First, in concluding that section 13-214.3(d) "applies only to legal malpractice actions related toclaims against an estate or petitions contesting the validity of a will under the Probate Act,"Zelenka fails to give meaning to the term "unless." Section 13-214.3(d) clearly states that aclaimant has two years in which to bring an action "unless" letters of office are issued or the willis admitted to probate. Where no letters of office are issued or where the will is not admitted toprobate, a claim must be brought within two years.

Second, the Zelenka court stated that section 13-214.3(d) "applies to actions commencedwithin the time for filing claims under the Probate Act." 294 Ill. App. 3d at 250. The court thenconcludes that section 13-214.3(d) applies only to malpractice actions related to claims againstan estate or petitions contesting the validity of a will. However, actions that may be commencedunder the Probate Act are not limited to claims against an estate and actions contesting thevalidity of a will. For example, section 8-1(f) (755 ILCS 5/8-1(f) (West 1998)) provides that"[a]n action to set aside or contest the validity of a revocable inter vivos trust agreement ordeclaration of trust to which a legacy is provided by the settlor's will which is admitted toprobate shall be commenced within and not after the time to contest the validity of a will asprovided in subsection (a) of this Section [six months] and Section 13-223 of the Code of CivilProcedure [(735 ILCS 5/13-223 (West 1998))]."

Third, under the Zelenka court's reasoning, the key to determining whether a malpracticeaction may be commenced within the time limits set forth in section 13-214.3(d) is the manner inwhich the assets are distributed. Yet section 13-214.3(d) makes no mention of the manner inwhich assets are distributed. Rather, the touchstone to bringing a malpractice action under thissection is the timing of the injury. Where the injury caused by the act or omission does not occuruntil the death of the person for whom the professional services were rendered, section 13-214.3(d) is applicable. If the legislature had intended that section 13-214.3(d) apply only toassets distributed through probate, the legislature could easily have expressed its intention byincluding language to that effect or by excluding assets distributed via inter vivos trusts and othersimilar instruments.

CONCLUSION

For the foregoing reasons, the judgment of the circuit court is reversed and this matter isremanded for proceedings consistent with this opinion.

Reversed and remanded.

O'Mara Frossard, P.J., and Gallagher, J., concur.

1. ¹The Limitations Act was amended by Public Act 89-7 (Pub. Act 89-7, eff. March 9,1995), which was held unconstitutional in its entirety by the Illinois Supreme Court in Best v.Taylor Machine Works, 179 Ill. 2d 367 (1997). Accordingly, we revert to the prior version of thestatute.

2. ²Although count II of plaintiff's complaint is, apparently, still pending in the circuit court,we exercise jurisdiction over the issue presented in this matter pursuant to Supreme Court Rule304(a) (155 Ill. 2d R. 304(a)).