Wills & Estate Planning

The “Wills Exception” to Solicitor-Client Privilege

Written on behalf of Cherkowski Marsden LLP

Solicitor-client privilege is a fundamental right owed to anyone who retains the services of a lawyer. The right essentially states that all communications between a lawyer and their client are strictly confidential and neither party can be legally compelled to disclose the contents of these communications. Because the rule exists to protect the interests of clients, they are the only party that can voluntarily and unilaterally choose to disclose these communications. This privilege also exists on a permanent basis, meaning that even if a client were to die, their lawyer is still obligated to keep all communications private.

There is an exception to this rule, however, and it exists in relation to the preparation of a Will if the validity of that Will is challenged after the testator’s death.

What is the Wills Exception, and When Does it Apply?

The wills exception exists because when assessing the validity of a Will, the notes and testimony of the lawyer who drafted the Will are the most relevant pieces of evidence that the court can consider. The rationale behind allowing this exception was famously articulated in the 1991 Supreme Court of Canada decision Geffen v. Goodman Estate. In the reasoning, the court held that allowing this information and testimony was not a violation of the now-deceased client’s rights. Instead, “the interests of the … client are furthered in that the purpose of allowing the evidence to be admitted is to ascertain her true intentions”. In other words, the exception exists specifically for the benefit of the client, even after death, and so it is aligned with the very principles behind the concept of solicitor-client privilege.

A Court Invokes the Wills Exception To Determine the Validity of a Second Will

In a recent British Columbia decision, the court found it necessary to invoke the wills exception when a child of the deceased questioned his father’s intentions when he created a second Will, which had the effect of revoking one he had created 7 years earlier. In the first Will, the father provided a modest bequest to one of his daughters, with the remainder of the estate to be divided equally among his remaining four children. Seven years later (and four years prior to his death), the father executed a new Will. In the intervening years, the daughter to whom he had provided a specific bequest had predeceased the testator. In the new Will, the father gifted $50,000 to each of three of his children, with the remainder of the estate to go to his fourth child, who was also named as executor. On the day he prepared the second Will, he also transferred his real property into his daughter’s name; the same daughter he had named as executor. Other than the real property, the estate’s assets were fairly modest. Both wills were prepared by the same lawyer.

The deceased’s son brought an action against his sister, in her capacity as executor, claiming that their father had intended for her to old the real property in trust for each of the beneficiaries of the estate. He also sought an order to compel the lawyer who prepared the Wills to provide evidence as to his father’s intentions with respect to both wills.

The court determined that the wills exception was not limited to the validity of a Will, but also to the testator’s intention to create a trust. The court found that documents pertaining to the creation of the first Will were too far removed from the second Will to be relevant, however, and so the court ordered the production of the lawyer’s file as it related to the second Will only.

The Best Way to Ensure A Will Won’t Be Challenged is to Create One Early and Change it As Necessary

As demonstrated by the case at hand, one of the most common reasons a Will is challenged is when the testator’s capacity or intentions are in question. To avoid this confusion, we advise that people execute an estate plan sooner rather than later, leaving no question as to their mental or cognitive state, and ensuring that the plan contains clear instructions regarding their intentions. Wills can be updated and changed as necessary over time, so having one in place early will not pose a detriment should circumstances later change. A legal document that clearly sets out your intentions for your estate will go a long way to avoiding hardships for your loved ones after your death.

The estate lawyers at Cherkowski Marsden LLP in Vernon are extremely knowledgeable with respect to all aspects of estate planning and Will drafting. They have extensive experience drafting countless custom estate plans that range from simple to highly complex. For questions and advice about your estate planning needs, please contact their office online or by phone at 250-308-0338.