Starck v. Saul Ewing Arnstein & Lehr, LLP

2022 IL App (1st) 210680-U

SECOND DIVISION

December 30, 2022

No. 1-21-0680

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the

limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

______________________________________________________________________________

LAURIN STARCK, BRANDON STARCK, and CARA )

MENZIES, not individually but as the Independent)

Administrator of the Estate of Jeffrey Starck, deceased,

)

and as parent and representative of two minor children of

) Appeal from the

Jeffrey Starck pursuant to Article 7, Section 22 of the

) Circuit Court of

Walter J. Starck Trust, ) Cook County

)

Plaintiffs-Appellants, ) 20 L 12618

)

v. ) Honorable

) Margaret Ann Brennan,

SAUL EWING ARNSTEIN & LEHR, LLP and JAY P. ) Judge Presiding

TARSHIS, )

)

Defendants-Appellees. )

_____________________________________________________________________________

JUSTICE ELLIS delivered the judgment of the court.

Justices Howse and Cobbs concurred in the judgment.

ORDER

¶1 Held: Affirmed. Complaint for legal malpractice and tortious interference with

inheritance expectancy was time-barred under Probate Act.

¶2 Defendants, a law firm and an individual lawyer in the firm, drafted a Will and Trust for

plaintiffs’ father that effectively disinherited plaintiffs from his estate. Plaintiffs contested the

Will and Trust after they were submitted to probate; that challenge ultimately led to a settlement

that gave each plaintiff a portion of the estate. Following settlement, they sued defendants,

No. 1-21-0680

alleging legal malpractice and aiding and abetting / tortious interference with inheritance

expectancy. The circuit court dismissed the first claim, finding that only plaintiffs’ father was the

client with regard to the Will and Trust, and thus defendants did not owe the plaintiff children a

duty. It also determined that both claims were barred, as the court lacked jurisdiction to upset a

settled estate.

¶3 We agree with the circuit court that both of plaintiffs’ claims are barred by the

jurisdictional limit contained in the Probate Act. We thus affirm on that ground.

¶4 BACKGROUND

¶5 We draw our facts from the allegations of the complaint, which we accept as true at this

stage. In re Estate of Powell, 2014 IL 115997, ¶ 12.

¶6 Walter Starck, known as “Skip,” was an attorney and partner at defendant Saul Ewing

Arnstein & Lehr, LLP (the Firm). From 1973 to 1996, Skip was married to Shirley Starck. The

couple had three children: Laurin, Brandon, and Jeffrey Starck. Plaintiffs are Laurin and

Brandon, individually, along with Jeffrey’s estate.

¶7 Shirley allegedly suffered from a severe gambling addiction that has led to serious tax

and other financial difficulties. After she and Skip divorced, he “felt sorry for her” and allowed

her to live at his home. He also provided a small stipend so she could support herself. This

arrangement lasted until Skip’s death.

¶8 Near the end of 2018, Skip’s health began to deteriorate rapidly. On November 2, Skip

had an unsuccessful surgery for a bowel obstruction. As his health continued to decline, he

underwent a second emergency surgery for the obstruction two weeks later. Skip’s health

deteriorated further through the end of the month. During this time, Skip recognized his visitors

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but “was not able to converse clearly” with them. On at least one occasion, he could not

recognize his granddaughter.

¶9 Because of his rapidly deteriorating situation, on November 28, Skip told Laurin that he

wanted Powers of Attorney (POAs) drafted. With great difficulty, Skip was able to tell Laurin to

contact his colleague at the Firm, defendant Jay Tarshis, to help draft them. The initial plan was

to grant Laurin the POAs for both Skip’s property and medical decisions. But Laurin “did not

feel that she was emotionally able” to make Skip’s medical decisions, so she suggested

appointing Shirley as the medical POA. The next day, Tarshis sent over the separate POAs, and

Skip signed them.

¶ 10 While Laurin was discussing the POAs with Tarshis, she asked him to look into whether

Skip had executed any estate planning documents. Tarshis was not able to discover any. Despite

the lack of any formal estate planning, the complaint alleges that Skip told his children a year

before, via text message, that he intended to split his estate equally between the three of them. (A

copy of the text message is included in the record.)

¶ 11 Between December 4 and 6, Laurin was in San Francisco for a business trip. On

December 5, Tarshis prepared a Will and Trust based on a phone call he had with Shirley and

Skip. According to the complaint, “Tarshis said he believed he was talking to both [Shirley] and

Skip, but that somebody whom Tarshis believed to be Skip could only grunt during the

conversation and only [Shirley] spoke during the call.”

¶ 12 In apparent conflict with his oral wishes the year before, Tarshis drafted a Will that

placed everything into a Trust. Under the Trust documents, Shirley was entitled to the use and

control of the estate’s property. While specifics are not necessary for our decision, the documents

left Shirley as the sole beneficiary of the trust during her lifetime. The complaint alleges that

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there was a significant chance the children would effectively lose their inheritance: “Tarshis

warned that substantially all of Skip’s liquid assets were tax-qualified retirement benefits and

cautioned that if those benefits were not managed carefully, there might not be enough cash to

pay the Stipend to [Shirley] and to pay the Residence expenses.”

¶ 13 Laurin was unaware that Tarshis and Shirley had been discussing the estate plans without

her since November 30. She was also unaware of the December 5 meeting and the executed

documents until she returned home from her trip. On December 7, she contacted Tarshis and

expressed her concern that the drafted documents did not accurately reflect Skip’s intent. Tarshis

immediately sent an email to schedule a meeting between himself, Skip, Laurin, and Shirley.

Shirley cancelled the first meeting because Skip was not well enough to meet.

¶ 14 Tarshis finally visited Skip in the hospital on December 13. Laurin, Shirley, and Skip’s

brother were also there, but Skip was not awake. “During the entire time Tarshis was near Skip

on December 13, 2018, Skip and [sic] was not able to, and did not, communicate with Tarshis or

anyone else.” The complaint alleges that Tarshis left once he discovered how ill Skip was.

¶ 15 During this entire ordeal, Skip’s health continued to worsen. For example, on December

2, three days before Skip allegedly had the phone call with Tarshis, he “could only stare blankly

at [his brother] and did not respond.” Around December 10, Skip entered hospice care. He died

on December 19.

¶ 16 The December 5 Will and Trust were submitted to probate in early 2019. The plaintiffs

quickly filed a will contest, claiming that Shirley unduly influenced the creation of an estate plan

which left her everything. Shirley and the estate were represented by the Firm. In March 2020,

plaintiffs and Shirley settled the probate litigation to reform the Trust and split what remained of

Skip’s estate equally—25% each to Shirley and the three plaintiffs.

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¶ 17 In November 2020, plaintiffs filed this suit against the Firm and Tarshis. They pleaded

two counts in the alternative.

¶ 18 Count I sounds in legal malpractice, alleging that “[b]y no later than November 29, 2018,

Laurin Starck had retained Defendants on her behalf in her capacity as power of attorney for

Skip relative to, inter alia, Skip’s estate planning.” The complaint alleges that defendants owed a

duty to plaintiffs because they were “the direct intended beneficiaries of Laurin’s power of

attorney over Skip.” Plaintiffs claim defendants breached their duties by failing to discuss the

estate planning with Laurin (who had POA over Skip’s property), failing to recognize that Skip

lacked testamentary capacity, and preparing the Will and Trust at Shirley’s direction. As

damages, they sought “the diminution of their respective intestacy interests in Skip’s estate.”

¶ 19 As for Count II, titled “Tortious Interference / Aiding and Abetting,” plaintiffs claim that

defendants knowingly assisted Shirley’s undue influence over the creation of Skip’s estate

documents. Plaintiffs allege that Shirley contrived a situation where the Will and Trust were

drafted at her direction, intentionally excluding Laurin (who, again, had the property POA). They

claim that defendants “substantially assisted” Shirley’s scheme. As for damages, like the

malpractice claim, they sought “the diminution of their respective intestacy interests in Skip’s

estate.”

¶ 20 Defendants filed separate motions to dismiss under section 2-615 and 2-619. See 735

ILCS 5/2-615, 2-619 (West 2020). In their section 2-619 motion, they first argued the claims

were effectively a will contest, as they relied on Skip’s lack of testamentary capacity. Thus, the

claims were untimely under the Probate Act, and the court lacked jurisdiction to consider them.

Next, they argued the claims were untimely under the special limitations period applicable to

attorneys. Third, they contended that settlement of the underlying will contest released the claims

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against them. Finally, they argued that Count I lacked merit because the retainer agreement

between Tarshis and Skip conclusively proved there was no attorney-client relationship between

them and plaintiffs.

¶ 21 The circuit court issued a memorandum order dismissing the claims with prejudice. First,

it found that the retainer agreement defeated the malpractice claim and “Plaintiff [sic] cannot

simply piggyback off of Skip’s representation.” It also ruled that both counts were barred by the

Probate Act because “Plaintiffs could have pursued their claims for both aiding and abetting and

negligence through their Petition in the Probate Action but chose to abandon those claims in

favor of settlement. Plaintiffs cannot now attempt to invalidate the Will they previously assented

to through the Settlement Agreement.”

¶ 22 Plaintiffs timely appealed.

¶ 23 ANALYSIS

¶ 24 Plaintiffs challenge the two bases of the circuit court’s decision: lack of attorney-client

relationship and the Probate Act bar. We address only the Probate Act bar because we find it

dispositive.

¶ 25 The Probate Act provides that an interested person has 6 months to contest the validity of

a will after it has been admitted to probate. See 755 ILCS 5/8-1(a) (West 2020). This 6-month

limitations period is jurisdictional in nature. In re Estate of Ellis, 236 Ill. 2d 45, 50 (2009). If the

will is not challenged within this time period, “the validity of the will is established for all

purposes.” Id. “Whether the six-month limitation is applicable to a tort claim is a question of

statutory construction subject to de novo review.” Id.

¶ 26 We agree with defendants that the disposition of this appeal is controlled by Robinson v.

First State Bank of Monticello, 97 Ill. 2d 174 (1983). In simplified terms, the testator there had

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left an original will and codicil in 1973 that was later revoked in a document prepared by an

attorney named Doss. Id. at 176. After that revocation of the 1973 will, the testator executed a

new will and codicil that left nearly all of the testator’s estate to Doss and disinherited the

plaintiffs, who were the testator’s family. Id. at 175-76. After that new will and codicil was

submitted to probate following testator’s death, the plaintiffs entered into a settlement agreement

with Doss in lieu of a lawsuit, granting them $125,000 from the estate. Id. at 176.

¶ 27 About two years after the settlement agreement, the plaintiffs discovered that the 1973

will had existed but then was revoked. Id. at 178. They filed a complaint, directing two counts

against the executor, alleging that the executor breached its fiduciary duty and was negligent in

not disclosing the existence of the revocation document. Id. at 180. Count III of the complaint

named Doss as a defendant for tortious interference with inheritance expectancy for his role in

procuring the new will that gave nearly the entire estate to him. Id. at 181.

¶ 28 Our supreme court ultimately held that each of these three counts should be dismissed.

As to the claim of tortious interference against the attorney, Doss, the court wrote:

“In this case, where a will has been admitted to probate and where the plaintiffs

have engaged an attorney to determine whether they should file a will contest, have

decided not to contest the will, have entered into a settlement agreement for $125,000

***, and have allowed the statutorily prescribed period in which to contest the will to

expire (thereby establishing the validity of the will), we will not recognize a tort action

for intentional interference with inheritance.” Id. at 184.

¶ 29 Nor did the court limit that discussion to the claim of tortious interference:

“We believe that all three counts should have been dismissed, because underlying

the plaintiffs’ whole complaint is the necessary determination that the decedent’s 1974

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will and 1976 codicil that were admitted to probate and became valid under the Probate

Act of 1975 are invalid.” (Emphasis added.) Id. at 183.

¶ 30 The court reasoned that “if we were to allow the plaintiffs to maintain their tort action,

we would be giving them a second bite of the apple and defeating the purpose of the exclusivity

of a will contest under section 8–1 [of the Probate Act].” Id. at 185. Said differently, “to allow

the complaint to be filed here would permit the issue of undue influence, which would have been

grounds for a will contest, to be litigated years after the will was admitted to probate and immune

from contest on this issue.” Id.

¶ 31 The rule that has developed since Robinson is “that the tort action is not available ‘where

the remedy of a will contest is available and would provide the injured party with adequate

relief.’ ” Bjork v. O’Meara, 2013 IL 114044, ¶ 25 (collecting cases).

¶ 32 Plaintiffs’ principal distinction of Robinson is that here, they did, in fact, file a will

contest that ultimately ended in a rather successful settlement that allowed for changes to the

trust. Their settlement was post-suit, in other words, while the Robinson plaintiffs settled their

claim without ever filing a lawsuit.

¶ 33 We do not see any meaningful distinction between settling a claim pre-suit versus doing

so after the lawsuit was filed—or between a “successful” settlement versus any other kind. The

point of Robinson is that the plaintiffs settled their claims, thus allowing the will to become

valid, and any later attempt to effectively invalidate that will through a tort action cannot be

allowed to stand.

¶ 34 Indeed, we reached the same result, under the same facts present here, in Phelps v. Land

of Lincoln Legal Assistance Foundation, Inc., 2016 IL App (5th) 150380. There, the heirs of a

testator filed a contest of a will that disinherited them. Id. ¶ 4. The plaintiffs later settled their

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contest. Id. They then filed a separate suit, naming the attorneys who drafted the will, alleging

breach of fiduciary duty, legal malpractice, and tortious interference with expectancy. Id. ¶¶ 5, 7.

¶ 35 We found the facts of that case “nearly identical to those set forth in Robinson.” Id. ¶ 33.

The fact that plaintiffs had settled after filing a will contest, as opposed to settlement before

filing such a suit, did not alter the equation; as we noted there, the critical fact was that the

plaintiffs “chose to settle that action short of reaching the will’s invalidity,” and “[a]s a result, the

will was admitted to probate, thereby establishing the validity of the will.” Id. ¶ 34. As such, we

found that “the declaration of the supreme court in Robinson controls our disposition ***.” Id.

¶ 36 Further attempting to distance this case from Robinson, plaintiffs claim that they are not

trying to invalidate the will. Instead, they say, they are seeking to recover damages caused by

defendants’ tortious interference (or, alternatively, their legal malpractice), including “the legal

fees and costs [p]laintiffs were forced to expend in the Probate Case.” Unfortunately, there are

two problems with this argument.

¶ 37 The first is that, while we understand that plaintiffs here do not explicitly seek the

invalidation of the Will and Trust, the gravamen of their claims is the presence of undue

influence. Defendants, in fact, go so far as to claim that the complaint here contains “over 90%

of the underlying allegations in the Petition to Contest Skip’s Will.” We have not done the math,

but we agree that the entire thrust of the complaint is that Skip was subjected to undue influence

in executing the Will and Trust that was submitted to probate. And Robinson makes clear that

plaintiffs cannot use this second lawsuit to relitigate the question of undue influence. See

Robinson, 97 Ill. 2d at 185 (“to allow the complaint to be filed here would permit the issue of

undue influence, which would have been grounds for a will contest, to be litigated years after the

will was admitted to probate and immune from contest on this issue.”).

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¶ 38 The second is that, however plaintiffs characterize their requested relief before this court,

it is not how they characterized it in their complaint. Both counts of the complaint allege the

following damages: “As a direct and proximate cause of the foregoing, Plaintiffs were injured

and suffered damages by the diminution of their respective intestacy interests in Skip’s estate

over and above what could reasonably be obtained by reforming Skip’s Trust with the probate

court’s approval.” In other words, the complaint alleges as damages the difference between what

plaintiffs believe they should have received from Skip’s estate (33% for each plaintiff), but for

the undue influence, and what they actually received (25% each).

¶ 39 In any event, however plaintiffs characterize their relief, it would be impossible to rule in

their favor without first determining that the original will was invalid due to undue influence, an

issue that has already been fully litigated and conclusively resolved. See id.

¶ 40 We are thus bound to follow Robinson. And that decision bars both claims alleged here—

legal malpractice and tortious interference with inheritance expectancy. Robinson itself applied

its holding not only to the tortious interference count but also to the counts alleging the torts of

breach of fiduciary duty and negligence. See id. at 183. The critical takeaway is that a tort action

may not lie to relitigate a claim of undue influence, as long as the plaintiffs had an opportunity to

litigate that question through a will contest but, by inaction or settlement, chose not to litigate

that claim to its ultimate merits. See id. at 185; Phelps, 2016 IL App (5th) 150380, ¶ 34.

¶ 41 We thus find that the circuit court correctly dismissed the complaint in its entirety as

time-barred under the Probate Act.

¶ 42 CONCLUSION

¶ 43 The circuit court of Cook County is affirmed.

¶ 44 Affirmed.

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