The "wills exception" to solicitor-client privilege

Today we have a guest blog post from James D. Steele, a lawyer at the firm of Robertson Stromberg in Saskatoon. James is going to discuss confidentiality and privilege. As most people know, a lawyer who works for you must keep your information and your business private. This is known as solicitor-client or lawyer-client privilege, and normally that privilege continues to exist even after you pass away. Or does it? This is the subject of James' article below. Enjoy!

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Case comment on Figley v. Figley, 2018 SKQB 102, 21 C.P.C. (8th) 149

This article provides an estate litigation update, offering a brief synopsis of the 2018 Saskatchewan decision in Figley v. Figley, 2018 SKQB 102, 21 C.P.C. (8th) 149.  Figley v. Figley offers an important reminder to parties not only in Saskatchewan, but across Canada. Namely, there exists a “wills exception” to solicitor-client privilege. This principle can help a party request and obtain key records made by the solicitor for the deceased, when they would otherwise be protected by privilege.

Introduction  
This case arose out of the estate of Ray Kenneth Figley, who died on October 4, 2007. Eugene Figley, as plaintiff, was attempting to probate what purported to be the Last Will and Testament of Ray Figley (the “Will”). Ronald Figley and Stanley Figley opposed probate, disputing the testamentary nature of the alleged Will.  Ronald Figley requested a court order, allowing Ronald to question a local lawyer (not a party to this action) who had been a witness to the Will now being probated. Ronald Figley requested a court order, first, to examine the lawyer, and second, to obtain certain documents from the lawyer, relating to the preparation and execution of the Will.

The Court’s decision 
This case comment will focus on Ronald’s request for the local lawyer, as a non-party to the lawsuit, to produce certain documents relating to the Will’s execution.  The Court began by considering Rule 5-15 of the Saskatchewan Queen’s Bench Rules: 
5-15 
(1) On application, and after notice of the application is personally served on the person affected by it, the Court may order the production of a document from a person who is not a party at a date, time and specified place if:  
(a) the document is in the possession, custody or control of that person; 
(b) there is reason to believe that the document is relevant to any matter in issue; and 
(c) the person who has possession, custody or control of the document might be required to produce it at trial. 

The third-party lawyer had resisted the application, noting the sanctity of the solicitor-client relationship, and the privilege that attaches to documents surrounding the making of the Will. However, the Court rejected any defence of privilege. The Court noted the decision in Goodman Estate v. Geffen, [1991] 2 S.C.R. 353 (SCC), and other Canadian case law. In such previous decisions, Canadian courts had established a so-called “wills exception” to privilege. The principled basis for such an exception, was that if privilege were automatically upheld, such would prevent a court from seeing documents which could shed light on the true intention of a testator’s intention over their estate. As such, the lawyer’s documents were ordered disclosed.

Lessons from Figley:
Figley emphasizes a useful tool available to parties involved in disputes over a Will’s validity. Namely, a key source of evidence relating to a deceased testator’s capacity, or voluntariness, can sometimes be found in the lawyer’s documents which were created when a Will was made. These records will often be very persuasive as they are made contemporaneously by one trained to look for capacity, and by a non-beneficiary. Of course, such documents made by a client’s lawyer would ordinarily be privileged. However, as Figley explained, Canadian law has decided they are subject to a “wills exception.” This means that if the documents are capable of showing a deceased’s intentions for their estate, they may indeed be produced in order to shed light for a court. What this means is that parties should consider if such documents exist in their Will dispute and may wish to take steps to determine their contents. As shown in Figley, it may be that a formal court application is required, however.

The above is for general information only. Parties should seek specific legal advice prior to taking action in specific situations. For more information or for specific legal advice, please contact a lawyer.  Copyright 2018 by the author. All rights reserved. Reproduction of any material herein without permission of the author is prohibited.  

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