Attorney Tammy Julian of Farrell Hamilton & Julian in Godfrey filed a reply in support of her motion to dismiss a legal malpractice suit alleging she negligently prepared a trust, which resulted in loss of estate assets.
According to plaintiff Abby Benson Razer’s lawsuit filed in August, she claims the late Orville Benson, who died in 2009, retained Julian in April 2007 for the purpose of creating an irrevocable living trust, under which Razer was a beneficiary.
Following Benson’s death, his surviving wife, Shirley Benson, believed she would be protected from a Medicare spend-down under the terms of the trust. However, the plaintiff claims the trust did not protect Benson’s assets, which were spent down approximately $400,000, the suit states.
Razer alleges Julian was negligent in failing to inquire whether the Bensons had any handicapped relatives and failing to apply for veteran benefits available to the decedent under Illinois law, which would have spared the asset spend-down and allowed Shirley Benson more available assets for her care.
Julian filed her reply in support of her motion to dismiss on Oct. 26 through attorneys Brent Baldwin and M. Brendhan Flynn of The Baldwin Law Group in St. Louis.
She argues that the six year statute of repose for legal malpractice claims bars the suit.
“This malpractice suit was filed more than six years after the allegedly negligent estate planning occurred in 2007 and more than two years after Orville Benson’s death in 2009.
“Therefore, the statute of repose bars this malpractice claim regardless of whether the injury occurred during the Medicare spend-down from 2007-2009 as alleged in Plaintiff’s complaint, or did not occur until Orville Benson’s death in 2009 as Plaintiff’s counsel alternatively argued at the hearing on this motion to dismiss,” the reply states.
“Per the statute, the earlier of the two dates is controlling, but in this case, by either measurement (date of death or date of alleged malpractice), the statute had long run before this suit was filed in 2015,” it continued.
Julian’s motion to dismiss was filed almost a year prior to her reply on Nov. 9, 2015. She argued that the plaintiff failed to state a legally sufficient claim for negligence and that the claims are time barred.
“The general rule in Illinois is that an attorney can only be liable in negligence to his client and not to non-client third parties.”
“Defendant’s alleged failure to apply for Illinois Veteran’s benefits on behalf of plaintiff’s grandfather, Orville Benson, does not fit into any exception to the general rule,” the motion states.
Circuit Judge Dennis Ruth scheduled a case management conference for Jan. 25 at 9 a.m.
Razer seeks a judgment in excess of $50,000, plus costs of the suit.
The plaintiff is represented by William K. Meehan of the Meehan Law Firm in University City, Mo.
Madison County Circuit Court case number 15-L-1092