Court Will Not Order Production of Drafting Lawyer’s Will File in Claims

Production of Drafting Lawyer’s Will File

It is very common in estate litigation for the party attacking a will to want production of the drafting lawyer’s will file relating to the taking of instructions, preparation of, and execution of the deceased’s last will.

As a general statement of law, any communications between a lawyer and his or her client(s) are “privileged” and cannot be disclosed, even after death by the personal representative of the deceased.


There is a significant exception to that general rule in estate litigation that relates to the question of the actual validity of a will.

The law relating to solicitor/client privilege was reviewed in Fawcett Estate v Fawcett Estate (1998) BCJ 629, which stated inter alia:

14a    a) Once the lawyer client relationship arises, the privilege becomes permanent, unless the client waives it (Descoteaux v. Mierzwmski, [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.

14b    b) 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                                                                              

14c    c) 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 lawyer owes a duty to assert it on the client’s behalf (Bell v. Smith, [1968] S.C.R. 664


14d d) 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.).

14e e) 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.

14f    f) 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.). added the emphasis to 14f and points out that it is this line of case law, following the Gordon v Gilroy case, that prevents a lawyer from successfully getting a court order for the production of the drafting lawyer’s file in a wills variation action, where the claimant is not attacking the actual validity of the will,and is simply looking for reasoning in the lawyers file that might assist the claimant in defeating the testator’s intentions by varying the will in his or her favour.

The courts have stated that the testator’s intention re the will is obvious and is as stated in the will itself.

It is only where there is a claim attacking the validity of the will, such as for lack of capacity or undue influence, that the courts will order production of the drafting lawyers file. Otherwise, the file is provileged and non compellable.

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