Professional Negligence Law Reporter

An Illinois appellate court held that beneficiaries’ legal negligence and tortious interference claims against an attorney and law firm were time-barred under the Illinois Probate Act, 755 Ill. Comp. Stat. 5/8-1(a).

Walter “Skip” Starck told his three children via text message that he would divide his estate equally among the three of them. When his health began to deteriorate, Starck signed several powers of attorney drafted by attorney Jay Tarshis, who also drafted a will that placed Starck’s assets into a trust and left his former wife, Shirley, as the sole beneficiary of the trust during her lifetime. Following Starck’s death, the children contested the will, claiming that Shirley had unduly influenced the creation of the estate plan. The children and Shirley settled the probate litigation and split the remainder of Starck’s assets equally. The children then sued Tarshis and a law firm, alleging legal negligence and tortious interference.

The defendants moved to dismiss. The trial court granted the motion, finding that the Probate Act barred the plaintiffs’ claims. The court reasoned that the plaintiffs could have pursued their claims in the probate action but instead chose to settle.

Affirming, the appellate court noted that the Probate Act provides that an interested person has six months to contest the validity of a will after it has been admitted to probate. Absent such a challenge, the court said, the will’s validity is established for all purposes. Citing case law, the court also found that where a will contest is available and would provide adequate relief, a tort action is not also available.

Applying these principles, the court noted that the plaintiffs had settled their claims, allowing the will to become valid. Any later attempt to invalidate the will through a tort action is impermissible, the court found, adding that the plaintiffs cannot use a second lawsuit to relitigate the question of undue influence. Moreover, it would be impossible to rule in the plaintiffs’ favor without first determining that Starck’s original will was invalid—an issue that has been resolved conclusively, the court said.

Consequently, the court held that the trial court had correctly dismissed the complaint as time-barred.

Citation: Starck v. Saul Ewing Arnstein & Lehr, LLP, 2022 WL 18012374 (Ill. App. Ct. Dec. 30, 2022).