Madison - St. Clair Record

Monday, September 16, 2019

Godfrey attorney seeks to dismiss legal malpractice suit

By Heather Isringhausen Gvillo | Feb 15, 2017

Attorney Tammy Julian of Farrell Hamilton & Julian in Godfrey seeks to dismiss an amended legal malpractice complaint alleging she negligently prepared a trust.

Plaintiff Abby Benson Razer filed the lawsuit in August 2015 alleging the late Orville Benson, who died in 2009, retained Julian in April 2007 for the purpose of creating an irrevocable 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 more assets for the family’s care.

Julian filed a combined motion to dismiss on Nov. 9 through attorney Brent Baldwin of The Baldwin Law Group in St. Louis.

Julian alleges the plaintiff’s claims are time-barred.

“Here, the alleged negligence occurred in April 2007, which is more than six years prior to the filing of this case on August 25, 2015 and therefore, the statute of repose bars this action,” the motion states.

Julian also alleges the plaintiff failed to plead a legally sufficient claim of legal malpractice.

“Plaintiff alleges no facts showing how Defendant owed her a duty to apply for Illinois veteran’s benefits on her grandfather’s behalf and as such she lacks standing to sue over this alleged wrong,” the motion states.

Circuit Judge Dennis Ruth granted dismissal on Dec. 16, but granted the plaintiff leave to amend her complaint.

Razer filed an amended complaint on Jan. 25 through attorney William Meehan of Meehan Law Firm in University City, Mo.

She alleges Julian knew or should have known that a special needs trust was the proper estate planning device, but failed to inquire whether the plaintiffs had any handicapped relatives.

“But for the negligence of Defendant Julian, the Bensons would have been spared the asset spend-down and Abby Benson Razer would have had more assets available for her care and Orville Benson would have received additional monetary benefits,” the complaint states.

She also argues that she could not have discovered the mistake until January 2014 when her mother consulted attorneys to explore legal action against Julian.

Julian filed a motion to dismiss Razer’s amended complaint on Jan. 26.

She alleges the statute of repose still bars the plaintiff’s claims.

“When Plaintiff could have discovered the wrongdoing might delay accrual of the statute of limitations, but it does not matter here because the statute of repose, unlike the statute of limitations, time bars claims based even on undiscoverable wrongdoing,” the motion states.

Julian also argues that the amended complaint still fails to plead a legally sufficient claim of legal malpractice.

Madison County Circuit Court case number 15-L-1092

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