Appellate Court Holds Attorneys Owe A Duty To Decedent’s Next Of Kin In Wrongful Death Action

An appellate court in Illinois ruled in favor of a disabled man on a legal malpractice action. Perry Smith purportedly died because of medicalnegligence. A representative of the estate sued the medical providers formalpractice. Eventually, the case settled. The attorneys were aware thatPowell was one of the decedent’s next of kin and was disabled. However,the attorneys handling the malpractice suit failed to open up a probate estatefor Powell’s share of the settlement. This was a requirement under the WrongfulDeath Act. Instead, they allowed the other next of kin to take both shares ofthe settlement, and Powell’s share was misspent. The trial court dismissed the legal malpractice action because Powell did not sufficiently plead the duty and causation elements of the action.

In Powell v. Wunsch, the court held the language of the Wrongful DeathAct allows the decedent’s next of kin to be clients of the attorneys thatbrought the cause of action on behalf of the estate. Additionally, theattorneys specifically owe a duty to the decedent’s next of kin. Moreover, theattorney has a duty to open up a probate estate where a decedent’s next of kinis mentally disabled specifically for the disabled persons benefit.  

See Powell v. Wunsch, 2013 IL App. (1st) 121854.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.