Canada: Solicitor-Client Privilege And The Wills Exception

Last Updated: December 22 2015
Article by Gordon Behan

Solicitor-client privilege is a "fundamental civil and legal right"1 which ensures that communications between lawyer and client are strictly confidential.  Neither the lawyer nor the client can be compelled to disclose communications that are protected by solicitor-client privilege.  The client owns the privilege and, therefore, only the client is permitted to voluntarily disclose privileged information. 

The purpose of solicitor-client privilege is to facilitate full and frank disclosure by the client to the lawyer, which is necessary for the lawyer to provide the best-possible legal advice.  As Brougham L.C. stated over 150 years ago, "[i]f the privilege did not exist at all, everyone would be thrown upon his own legal resources; deprived of all professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case"2.

Solicitor-client privilege is permanent, surviving the death of the client (and the lawyer, for that matter), which has an obvious implication in the wills and estates context.  Even after the will-maker has passed away, the solicitor-client privileged information is maintained in confidence.  However, notwithstanding the sanctity of solicitor-client privilege, a significant exception has emerged in the wills and estates context: the "wills exception", which applies where the validity of the deceased's will is challenged.

This article discusses the wills exception and recent attempts to expand the exception to the wills variation context, where the issue is not the legal validity of the will itself, but rather the will-maker's decisions with respect to the distribution of his or her estate.

Wills Exception

In many estate litigation cases, a party seeks to set aside the will by alleging that the will-maker did not have the requisite capacity to make the will or was unduly influenced to make the will.  If such an argument is successful, the estate will be distributed according to the deceased's last valid will or, if there is no will, in accordance with the intestacy provisions of the Wills, Estates and Succession Act.

The Court must rely on the relevant evidence to decide the case. The documents and testimony of the solicitor who drafted the will would obviously be relevant evidence that would greatly assist in determining the will-maker's true intentions and capacity in executing the will.3  However, such evidence is generally prohibited by solicitor-client privilege.  In this context, courts have developed the "wills exception" to solicitor-client privilege, and will often order that the drafting solicitor's file be disclosed and testimony heard.

The rationale for the wills exception is explained in Geffen v. Goodman Estate, where Wilson J. states that the policy reasons for solicitor-privilege are not violated by disclosing solicitor-client communications in the wills context.  Rather, "the 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".  In other words, the focus remains on the client who owns the privilege, but an exception to solicitor-client privilege benefits the client in these cases because it assists in determining the client's capacity and actual intention.

Wills Variation Context

In British Columbia, a spouse or child has standing to apply to vary the will-maker's will, if the spouse or child has not been adequately provided for. In adjudicating these cases, courts consider, among other things, the will-maker's reasons for not making adequate provision for the spouse or child, including the relationship between the applicant and the will-maker.  As with the case of capacity and undue influence, the evidence of the drafting solicitor may be potentially relevant, but would again be privileged information. 

There have been recent attempts to expand the wills exception to the wills variation context. In Brown v Terins4 , which dealt with an application by a common-law spouse for production of the deceased spouse's will file, the Court recognized that the solicitor-privileged information was relevant evidence.  However, the Court held that the purpose of waiving solicitor-client privilege in the wills variation context is not to determine the will-maker's true intentions, but rather to attempt to defeat those intentions.  In the wills variation context, the applicant would be using the privileged information to show that the will-maker's reasons for excluding the applicant from the will were not valid and rationale and, therefore, the will-maker's intentions should be overturned.  Accordingly, the Court did not extend the wills exception to the wills variation context.

The overriding principle that governs in the wills exception cases is that the will-maker owns the privilege.  Where the Court has held that it serves the will-maker's interest to have privileged information disclosed, the Court will generally order the information to be disclosed.  However, where the wills exception would operate to undermine the will-maker's interests, the Court has refused to order disclosure of privileged information.

Footnotes

1 Solosky v. The Queen, [1980] 1 S.C.R. 821.

2 Greenough v. Gaskell (1833), 1 My. & K. 98 at 103, 39 E.R. 618 at 620-21.

3 Geffen v Goodman Estate, [1991] 2 S.C.R. 353.

4 Brown v Terins, 2015 BCSC 775.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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