The privacy shield provided by solicitor-client privilege should be at its strongest when it comes to estate planning conversations, says an Ontario court — which denied a widow’s access to the estate planning files of her deceased spouse, who was working on a new will but didn’t finalize it before he died.
According to a decision of the Ontario Superior Court of Justice, a widow, Judith Kimberly Allison, was seeking access to the estate planning files of her deceased spouse’s lawyer, Michael McBride.
Her spouse, who died in early 2024, had a will that was made before their relationship began and was in the process of drafting a new will in the fall of 2023, but ultimately died without having signed a new final will.
The court said that Allison sought access to the lawyer’s files in the hope of finding evidence of the intended terms of the new will that could qualify as a valid will.
While there can be exceptions from the privacy protections provided by lawyer-client privilege to determine a deceased person’s true intentions in certain cases, this exception doesn’t apply when it comes to someone with an existing will who hasn’t finalized a new one, the court said.
“Try as I might, I cannot fit the rationale of the ‘wills exception’ to a case where a possible beneficiary wants to invade the confidential sphere of a deceased’s relationship with his or her lawyer to try to ascertain whether the deceased might have left enough documentary or written breadcrumbs to line a path to recognition of [valid will],” the court said.
According to the decision, in the summer of 2023, the deceased said he planned to have a new will, and he met with McBride on multiple occasions and signed new powers of attorney in November 2023 that named his spouse as his attorney for property and personal care. However, he never signed a new will.
“I have no doubt that the deceased was speaking to a lawyer about a will, as he apparently said he would do. But, despite signing powers of attorney in November, he did not sign a will then or in December when he went to the lawyer’s office again,” the court noted.
Given that there’s no new will, there’s also not an estate trustee who could consider waiving privilege, the court said.
“This is a ‘chicken and egg’ problem,” the court said. “In my view, the order of operations matters here. If there was a will produced then a challenge would meet the privilege exception. The problem with looking at the lawyer’s files before the deceased has expressed his or her testamentary intention in a will is that it necessarily invades the confidential lawyer-client relationship in a manner that cannot be presumed to have been desired by the deceased or to be in his interests.”
The court said that the case raises questions of whether the deceased had finalized his intentions and just hadn’t signed the final will, or had not decided on those final intentions — and, if he had determined those final intentions, why wasn’t a new will signed when the new power of attorney was signed, it wondered.
“Looking at the lawyer’s files could disclose the answer to these questions. But, in my view, it cannot be assumed safely that the deceased wished this to occur,” it said.
“In my view, without a will already produced, the chances that the deceased did not yet reach a final decision are at least as great, if not greater, than the chances that he did reach a final decision and just could not get the document signed in time,” the court said.
‘Intensely private’
And it suggested that estate planning conversations are entitled to the strongest privacy protections.
“Estates conversations about distributions of one’s assets among loved ones are among the most intensely private conversations imaginable that one can have with one’s lawyer. Clients are under an assurance that these conversations are protected and surrounded by the thickest curtain of nearly inviolable lawyer-client privilege,” it said.
“It is hard to fathom more personal and potentially gut-wrenching conversations between a client and a lawyer than about how to provide for loved ones after one is gone,” it noted.
As a result, the court found that, in a case where the deceased did not sign a new will, “then I would not presume that he wants his intentions known or that it is necessarily in his interests to disclose his lawyer’s file,” it said.
The legal basis for “invading the lawyer-client privilege does not apply to a search for near-will documents,” the court concluded.
“In the absence of a signed will … I cannot find that the search for the true intention of the deceased … is necessarily in his interest to a degree needed to justify extending the exception to the lawyer-client privilege,” it said.
As a result, the court rejected the application for access to the lawyer’s files.