Estate Litigation and Solicitor-Client Privilege

Solicitor-Client Privilege in Estate Litigation | Klein Lawyers

As held in British Columbia (Attorney General) v. Lee, 2017 BCCA 219, solicitor-client privilege has “evolved from a rule of evidence to ‘a fundamental and substantive rule of law.'” As such, the privilege must remain as absolute as possible once privilege has been established and from there, applies “to all communications made within the framework of the solicitor-client relationship.” This includes advice provided by the solicitor. However, in matters concerning estate litigation, how far does solicitor-client privilege go? Klein Lawyers explains.

Estate Litigation, Solicitor-Client Privilege, and The Wills Exception

When a client procures the service of an estate planning lawyer, there is the existence of solicitor-client privilege–extending past the death of the will-maker. However, when there is an issue with the will leading to wills variation, the “wills exception” comes into play.

When family members come forth to contest the validity of a will, they will seek evidence of a lack of testamentary capacity, the presence of undue influence, etc. to determine if the will should be distributed in the terms established by the will-maker.

However, without the will-exception, this evidence would have typically been prohibited by solicitor-client privilege. The case, Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, explains that when it comes to wills variation, “[t]he interests of the now deceased client are furthered in that the purpose of allowing the evidence to be admitted is to ascertain her true intentions. 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.”

Because divulging such client information in estate litigation cases benefits the client’s true intentions, the courts have found that solicitor-client privilege is not infringed upon.

Be warned, if the courts determine that providing information that was only known within the solicitor-client privilege would actually defeat those intentions, and in turn, the will-maker’s intentions should be overturned, the courts will not extend the wills exception to the wills variation context. This has been solidified in Brown v Terins, 2015 BCSC 775.

Obviously, the wills exception to solicitor-client privilege can quickly become complicated if the courts feel that the interest of the opposing party is not to preserve the will maker’s best interest. However, that does not mean that families that feel that their loved ones’ will is not valid shouldn’t contest it. Rather, they should seek legal counsel from experienced British Columbia wills variation lawyers who can navigate the process and ensure all interests are being met.

Estate Litigation and Solicitor-Client Privilege: Klein Lawyers

Challenging a loved one’s will is an emotional process, especially when you fear the wills exception will not be put into practice for your estate litigation. This is why it is important to work with an experienced lawyer who is committed to winning the maintenance and support you deserve.

Contact Klein Lawyers at (604) 874-7171 today for a free, confidential case evaluation. Our wills variation lawyers serve clients throughout British Columbia from offices in Vancouver, Abbotsford, Burnaby, Coquitlam, Langley, and Surrey.