Waiver of the Solicitor and Client Privilege

June 4, 2008 Hull & Hull LLP Litigation Tags: , , , 0 Comments

In Schwartz Estate v. Kwinter the divorce of the mother and father in 1996 divided the family, with one daughter, Elaine, siding with the father and the other daughter, Shelley, siding with the mother.  The father then made new Wills giving everything to Elaine, and the mother likewise made new Wills giving everything to Shelley.

The father died in 2003.  A dispute arose about the purported understanding between the parents in making these Wills leading Elaine to commence an action seeking, among other things, that her mother disclose the testamentary instructions given to her solicitor for the purposes of drafting her Wills, which the mother opposed on the ground that such instructions were privileged. 

The Court held that although a Will is privileged until the testator dies, and although instructions to a testator’s solicitor and the related work product are also privileged, that the mother voluntarily waived privilege by producing her Wills and by swearing affidavits relying on their content.

Another approach one could perhaps take in such circumstances is to refuse to produce a Will at the outset and claim that it is a privileged document, which may then likely lead to a court determining the issue.  If one is ultimately compelled to produce their Will by court order it would likely be viewed as involuntary disclosure, and therefore any claim for further disclosure (i.e. solicitor’s instructions and file documents) could again be met with a fresh assertion of privilege. 

Have a nice day,

Natalia

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