Will Drafters File Privileged In Wills Variation Claims

Judgement Does Not Sever Joint Tenancy

In an unreported decision, Brown v Terins et al, 20150505, Madam Justice Fisher refused an application brought by the plaintiffs in a wills variation action for access to the will drafters file so as to determine inter alia, the reasons for the disinheritance, so as to be able to determine if the reasons were rational and valid as they must be when reasons are stated.

No reasons were stated in the will for the disinheritance, and the plaintiff argued that under the exceptions to lawyer privilege is !) The exception to the general rule and wills cases and 20 waiver and fairness.

The judge followed precedent law stating that access to the will drafters file in a wills variation action is privileged and should not be made available to the plaintiff unless the executor waives the privilege.

disinherited.com personally agrees with the plaintiff in this application and feels that the will maker’s file should be disclosed in its entirety to all parties. That however is not the law.

The following quotes of law supporting the contention that the lawyer’s file is privileged as to the communications between the lawyer and the client as to any reasoning that might have been given with respect to a disinheritance under a wills variation claim.

It should be noted that should the validity of the will itself be in contention, such as for lack of capacity or claims of undue influence, then the lawyers will file is compellable to the plaintiff.

The Wills Exception

[8] The wills exception stems from the1851 decision in Russell v. Jackson, (1851), 9 Ha. 387, which reasoned that disclosure should be made in cases where the validity of a will is challenged in order to ascertain “the views and intentions of the parties, or the objects and purposes for which dispositions have been made”. The principle was extended to some extent in Geffen v. Goodman Estate, [1991] 2 SCR 353, to cases involving inter vivos trusts. It has also been extended in a case involving a committeeship under the Patients Property Act, RSBC 1996 c 349 in Re Palamarek, 2010 BCSC 1894.

[9] The rationale for this exception was discussed extensively in Geffen, and Madam Justice Wilson’s reasons for extending it there were stated at para. 65:  

In my view, the considerations which support the admissibility of communications between solicitor and client in the wills context apply with equal force to the present case. The general policy which supports privileging such communications is not violated. The interests of the now deceased client are furthered in the sense that the purpose of allowing the evidence to be admitted is precisely to ascertain what her true intentions were. And the principle of extending the privilege to the heirs or successors in title of the deceased is promoted by focusing the inquiry on who those heirs or successors properly are. In summary, it is, in the words of Anderson Surr. Ct. J. In Re Ott, supra, “[i]n the interests of justice” to admit such evidence.

[10] This case was referred to at length by Master Joyce (as he then was) in Gordon v. Gilroy, [1994] BCJ No. 1927 (SC). In Gordon, the question was whether that rationale supported disclosure in a Wills Variation Act action. Master Joyce decided that it was not, for these reasons:

In this case the issue is not “what were the true intentions of the testator”. There is no issue that he intended to leave his entire estate to Ms. Gilroy and thereby to disinherit his children. The purpose for seeking disclosure of the confidential communications in this case is not for the purpose of determining the testator’s true intentions or even the reasons for them, which are fully stated in the will itself, but rather for the purpose of attempting to defeat those intentions. The plaintiffs seek disclosure of the confidential communications in an attempt to overturn the will and defeat Mr. McKay’s testamentary wishes.

I suspect that it would surprise and distress a client if told by the solicitor whom that person retained to give advice and to prepare a will concerning the disposition or lack of disposition to the client’s children that after his or her death the solicitor would be obliged to disclose the discussions which the Brown v. Terins Page 4