Production of Previous Wills File Refused Due to Solicitor Client Privilege

Solicitor Client Privilege

Wood v Wilkie and Millican 2012 BCSC 1120 involve an application for production of the will file of the solicitor who prepared the deceased previous will in 2008, that was subsequently replaced by a will, in contention, in 2009 the defendant opposes the application on the basis that the only will in contention is the 2009 will and that therefore the contents of the solicitors 2008 will file should remain privileged.

A master initially dismiss the plaintiffs application and the appeal to the Supreme Court judge was dismissed on the basis that the pleadings related only to the capacity of the testatrix to make a will in 2009, or undue influence in relation thereto, and no claim was made relating to the validity of the 2008 will.

The Court stated as follows:

“The court started from the general proposition that a lawyer’s file is absolutely privileged from production subject only to certain exceptions. The plaintiff argued that one of the exceptions is a claim based on undue influence. The plaintiff relied on Geffin v. Goodman Estate, [1991] S.C.J. No. 53. The plaintiff argued that case directed courts to allow production of the solicitor’s will file on the principle that the evidence obtained was likely to go to the deceased’s true intent. See also Gordon v. Gilroy, [1994] B.C.J. No. 1927.

[11] At para. 18 of Fawcett, Chamberlist J. said:

As such, I am of the view that the exception to solicitor/client privilege is only made out where the issue is “what were the true intentions of the “testator” or, in Geffen, the settler of the inter vivos trust”. In the case at bar, the will itself is not being challenged.

[12] The defendants argue that is precisely the situation in this case. The will that is challenged is the 2009 will and the defendants submit the solicitor’s file relating to that will has already been disclosed and it is the only file relevant to the testator’s intentions.

[13] The plaintiff submits that the overall circumstances of this case, in particular the inter vivos transfer of the Christina Lake property, coupled with the allegations of undue influence, justify a more extensive disclosure order. However, the issues raised by the pleadings in the action relate only to the testator’s capacity to make the 2009 will or that she was coerced or under an improper influence when she did so.”