Client Privilege and the Wills Cases Exception

wills exception

Client privilege and the wills cases exception are the few line of cases that will not remain privileged after death.

It is very frequent in estate litigation that for various reasons, the disinherited parties often wish to obtain the wills files of the solicitor who drafted the wills on behalf of the deceased.

This frequently causes contested chambers application as to whether or not privilege will continue to apply to the files after the death.

 

As a general rule, all communications between a lawyer and his or her client, in the course of the lawyer client relationship, are privileged and that privilege remains forever unless the client waives it.

That solicitor client duty  to claim privilege applies to former or deceased clients, subject to the exception that on death, the deceased’s instructions concerning a will, which were privilege during his or her lifetime, may be disclosed.

 

Fawcett v Steiner and Fawcett Estate 21 ETR (2d) 686, provides a good summary of the leading principles that apply with respect to solicitor client privilege as it relates to wills:

 

  1. Once the lawyer client relationship arises, the privilege becomes permanent, unless the client waives it (Descoteaux v. Mierzwinaki,    [1982] 1 S.C.R. 860) and a solicitor’s duty to claim the privilege applies to former or deceased clients, subject to the exception that on death, the deceased’s instructions concerning a will, which were privileged during his or her lifetime may be disclosed.

 

2. By extension, the exception for wills cases permits posthumous disclosure of the settlors’ instructions concerning the creation of an inter vivos trust containing life and remainder interests {Geffen  v. Goodman Estate [1991] 2 S.C,R, 353

 

3. Legal professional privilege, or solicitor/client privilege, can be waived and that privilege belongs to the client, so the client is the party who can waive the privilege.  Until the client waives the privilege, the awyer owes a duty to assert it on the client’s behalf (Bell   v.   Smith,     [1968] S.C.R. 664 (Ont.).

 

4.With respect to waiver of privilege, although the privilege continues after the client’s death, an executor may waive it on behalf of a deceased client                 {Goodman  v. Geffen,    [1991] 5 W.W.R. 389 at 409-414 (S.C.C.).

 

5.the prerequisites of a valid waiver are that the client must know of the privilege and the right to claim it, and intend to relinquish it, and appreciate the consequences of doing so.

 

6. Where the purpose for seeking disclosure of the confidential communications between lawyer and client was for the purpose of attempting to defeat the testator’s true intentions, as opposed to determining the true intentions of the testator, then the application (for production of the solicitor’s file) will be dismissed

Gordon  v.   Gilroy,    [1994] B.C.J. No. 1927 (B.C.S.C. Was applied.

In that case, the court concluded that the purpose of seeking disclosure of the confidential information was not for the purpose of determining the testator’s true intentions, or even the reasons for them which were fully stated in the will itself, but rather for the purpose of attempting to defeat those intentions.

He found that the plaintiffs were seeking disclosure of the confidential communications in an attempt to overturn the will and defeat the testamentary wishes of the deceased.

That decision was a wills variation action, and stands for the proposition that a solicitor’s will file is not compilable and remains privileged in such actions, unless the validity of the document is in question.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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