Wills Exception to Solicitor-Client Privilege

The general rule is that if a client gives her lawyer confidential information, the lawyer must not disclose it, and indeed cannot be compelled to disclose it, without the client’s permission. This is called solicitor-client privilege, and the purpose of this rule is to allow the client to speak or write freely to his or her lawyer to get advice without having to worry that the lawyer will disclose the communication between them.

As with most legal rules, there are exceptions. One exception is referred to as the “wills exception.”

Solicitor-client privilege applies when a client speaks with her lawyer for advice and to give instructions to her lawyer to prepare a will. The lawyer is required to keep the conversation with the client confidential. If the lawyer retains the client’s original will, the lawyer must not release it to anyone other than the client, nor divulge the contents, without the client’s permission.

After the client’s death, the lawyer releases the client’s last will to the client’s personal representative. The will itself is no longer subject to solicitor-client privilege. This makes sense; it would be pointless to make a will disposing of your property at death, if nobody can find out about it when you die.

But even after the client’s death, the discussions that the client had with her lawyer remain privileged. When you engage a lawyer to make a will, you may have very private discussions with your lawyer about your children and other family members, that you would not want others to find out about (including perhaps your children or other family). Furthermore, you may want advice about potential claims related to your estate, and you would not be inclined to speak freely if those who may make the claims can find out after your death what you have told your lawyer.  After the client’s death, her executor or personal representative may be able to give the lawyer permission to disclose the communications, but the general rule continues to be that the lawyer must keep the communications confidential.

So what is the wills exception?

Although the case was about a trust rather than a will, Madam Justice Wilson’s judgment in Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, explains the principle and purpose well.

In Geffen, the executor of his mother, Tzina Burnette Goodman’s will challenged a transfer made by her during her lifetime of a house to a trust. He claimed that her brothers procured the transfer to the trust by undue influence. Tzina Goodman had inherited the house from her own mother, and under the terms of the trust she retained a life interest in it, and following her death, the house, or proceeds of sale, would be divided equally among her children, nieces and nephews. (The case is also a leading authority on the presumption of undue influence, but perhaps I will save that for another post.)

At trial, the trustees of the trust called the lawyer who took instructions from Tzina Goodman, drafted the trust and handled the transfer, to testify at trial about his discussions with Ms. Goodman.  His evidence was important to the issues of whether she understood the trust and was acting freely on the basis of independent legal advice.

The trial judge, after considering the lawyer’s evidence held that Ms. Goodman was acting voluntarily and found that the trust was valid. The Alberta Court of Appeal allowed Ms. Goodman’s executor’s appeal, and the trustees then appealed to the Supreme Court of Canada, which restored the trial judge’s decision that the trust was valid.

One of the issues in the Supreme Court of Canada was whether the Ms. Goodman’s lawyer who acted for her in setting up the trust and transferring the house should have been permitted to testify on behalf of the trustees. Ms. Goodman’s executor argued that his evidence was subject to solicitor-client privilege, and that he breached that privileged when he testified about his communications with he client.

Madam Justice Wilson in her reasons for judgment (there were three separate judgments in the Supreme Court of Canada) addressed this issue. She noted the significance of the lawyer, Mr. Pearce’s evidence:

51.     The  trial judge's admission of the evidence of Mr. Pearce, the solicitor who drafted the trust agreement, is challenged by the respondents.  Mr. Pearce's evidence is crucial in this case for two reasons.  First, it may help to ascertain what the precise circumstances surrounding the deceased's entry into the trust agreement were.  And secondly, this evidence is vital to the determination of whether Mrs. Goodman received independent advice concerning the proposed transaction.

She explained the general rule that communications between a client and her lawyer are privileged:

56      It has long been recognized that communications between solicitor and client are protected by a privilege against disclosure. The classic statement of the rationale behind this rule was made over 150 years ago by Brougham L.C. in Greenough v. Gaskell(1833), 1 My. & K. 98 at 103, 39 E.R. 618 at 620-21:

The foundation of this rule is not difficult to discover. It is not (as has sometimes been said) on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection, though certainly it may not be very easy to discover why a like privilege has been refused to others, and especially to medical advisers.

But it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on, without the aid of men skilled in jurisprudence, in the practice of the Courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the privilege did not exist at all, every one 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.

 57      More recently, this court has described the privilege as a "fundamental civil and legal right": see Solosky v. Canada, [1980] 1 S.C.R. 821 at 839, 16 C.R. (3d) 294, 50 C.C.C. (2d) 495, 105 D.L.R. (3d) 745, 30 N.R. 380. Thus, while at one time it was thought that the privilege belonged to the solicitor and not to his client, there is now no doubt that the privilege belongs to the client alone. One consequence of this is that confidential communications between solicitor and client can only be divulged in certain circumscribed situations. The client may, of course, herself choose to disclose the contents of her communications with her legal representative and thereby waive the privilege. Or, the client may authorize the solicitor to reveal those communications for her. Even then, however, the courts have been cautious in allowing such disclosures, so much so that they have assumed for themselves the role of ensuring that without the client's express consent a solicitor may not testify. Thus, in Bell v. Smith, [1968] S.C.R. 664, 68 D.L.R. (2d) 751, this court held that there had been a violation of solicitor-client privilege when a former solicitor of the plaintiffs in a motor vehicle accident claim was subpoenaed by the defendants and testified as to the settlement discussions that had taken place. Spence J. said at p. 671:

It is rather astounding that Mr. Schreiber should be subpoenaed to give evidence on behalf of the defendants as against his former clients and that he should produce his complete file including many memoranda and other material all of which were privileged as against the plaintiffs and whether the plaintiffs' counsel objected or not that he should be permitted to so testify and so produce without the consent of the plaintiffs being requested and obtained.

 Lord Chancellor Eldon said, in Beer v. Ward (1821), Jacob 77, 37 E.R. 779, at p. 80:

... it would be the duty of any Court to stop him if he was about to disclose confidential matters ... the Court knows the privilege of the client, and it must be taken for granted that the attorney will act rightly, and claim that privilege; or that if he does not, the Court will make him claim it.

 58      So important is the privilege that the courts have also stipulated that the confidentiality of communications between solicitor and client survives the death of the client and enures to his or her next of kin, heirs, or successors in title: see Bullivant v. Attorney General for Victoria, [1901] A.C. 196 (H.L.); Stewart v. Walker (1903), 6 O.L.R. 495 (Ont. C.A.); and Langworthy v. McVicar (1914), 25 O.W.R. 297, 5 O.W.N. 345.

The underlying purpose of solicitor-client privilege is to protect the client. But where the validity of a will or a trust is challenged on the basis that it did not reflect the client’s true intentions, the interests of the client are furthered by allowing the lawyer to testify about the communications with the client to determine the clients’ true intentions. It is because allowing the lawyer to testify furthers the now deceased's clients interest that there is an exception to the solicitor-client privilege.

Madam Justice Wilson wrote at paragraphs  62 through 65:

62      In the Law of Evidence in Civil Cases (1974), the authors, Sopinka and Lederman, argue that Canadian courts have approached the admissibility of this sort of evidence in a unique way, although the same result has been arrived at. For instance, inStewart v. Walker, supra, it was alleged that the testator had died intestate. The deceased's solicitor, however, had in his possession a copy of a will providing that he, the solicitor, was to be left the greater part of the deceased's estate and was appointed as sole executor. It was contended that the solicitor should not be permitted to give evidence as to the existence or validity of the will. The Ontario Court of Appeal, however, felt that the solicitor should have been permitted to testify, saying at pp. 497-98: 

The nature of the case precludes the question of privilege from arising. The reason on which the rule is founded is the safeguarding of the interests of the client, or those claiming under him when they are in conflict with the claims of third persons not claiming, or assuming to claim, under him. And that is not this case, where the question is as to what testamentary dispositions, if any, were made by the client. As said by Sir George Turner, Vice-Chancellor, in Russell v. Jackson (1851), 9 Ha. 387, at p. 392: "The disclosure in such cases can affect no right or interest of the client. The apprehension of it can present no impediment to the full statement of his case to his solicitor ... and the disclosure when made can expose the Court to no greater difficulty than presents itself in all cases where the Courts have to ascertain the views and intentions of parties, or the objects and purposes for which dispositions have been made." It has been the constant practice to apply the rule here stated in cases of contested wills where the evidence of the solicitors by whom the wills were prepared, as to the instructions they received, is always received. And the application of a different rule in this action would deprive the plaintiff of a considerable part of the proof of his case.

 63      Similarly, in Re Ott, [1972] 2 O.R. 5, 7 R.F.L. 196, 24 D.L.R. (3d) 517 (Surr. Ct.), where the issue was whether the testator by tearing it up intended to revoke a later will and revive an earlier one, Anderson Surr. Ct. J. held that the discussion that took place between the deceased and his solicitor at the time of the destruction of the will was admissible. At p. 11 he said: 

... since it is of essence to the case to find out the intention of the testator when he destroyed the will whether or not he was revoking his will unconditionally or whether he was only tearing it up on condition that an earlier will was thus revived, the whole issue turns on this question and it would seem to me that to invoke the privilege of the client, after the client is deceased would make it impossible for the Court to determine the intention of the testator in tearing up the will. In the interests of justice, it is more important to find out the true intention of the testator.

 64      In the present case the respondents argue that no analogy can be drawn between these wills cases and the situation here. I disagree. It is implicit in their argument that the common law has as yet only recog nized an "exception" to the general rule of the privileged nature of communications between solicitor and client when dealing with the execution, tenor or validity of wills and wills alone. Their argument is reminiscent of earlier days when the "pigeon hole" approach to rules of evidence prevailed. Such, in my opinion, is no longer the case. The trend towards a more principled approach to admissibility questions has been embraced both here and abroad (see, for example, in Canada, Ares v. Venner, [1970] S.C.R. 608, 73 W.W.R. 347, 12 C.R.N.S. 349, 14 D.L.R. (3d) 4 (hearsay), and R. v. Khan, [1990] 2 S.C.R. 531, 79 C.R. (3d) 1, 59 C.C.C. (3d) 92, 41 O.A.C. 353, 113 N.R. 53 (hearsay), and in the United Kingdom, Director of Public Prosecutions v. Boardman, [1975] A.C. 421, [1974] 3 W.L.R. 673, [1974] 3 All E.R. 887(H.L.) (similar fact)), a trend which I believe should be encouraged.
 

65      In my view, the considerations which support the admissibility of communications between solicitor and client in the wills context apply with equal force to the present case. The general policy which supports privileging such communications is not violated. The interests of the now deceased client are furthered in the sense that the purpose of allowing the evidence to be admitted is precisely to ascertain what her true intentions were. 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. In summary, it is, in the words of Anderson Surr. Ct. J. in Re Ott, supra, "in the interests of justice" to admit such evidence.