In the words of Justice Myers, “[n]o privilege at law is given greater protection than the privilege protecting confidentiality between clients and their lawyers”: see Seepa v Seepa, 2017 ONSC 5368. However, there is a well-recognized “wills exception” to solicitor-client privilege in Canada. When the Supreme Court of Canada addressed this topic over 30 years ago in Geffen v. Goodman Estate, 1991 CanLII 69, the Court held that an exception to solicitor-client privilege arises when disclosure of lawyer-client confidences will further the interests of the testator, and that such confidential information may be admissible in estate litigation to ascertain the testator’s wishes and true testamentary intentions.
Typically, disclosure of a lawyer’s file through the wills exception can only be obtained after probate has been granted and an estate trustee has been lawfully appointed to represent the estate: see for example, Romans Estate v. Tassone, 2009 BCCA 421, and Stapleton v. Doe, 2017 BCSC 12.
Outside Ontario, it appears that a lawfully appointed executor has the authority to waive solicitor-client privilege: in Alberta, for example, see Gow Estate (Re), 2021 ABQB 305, and in Saskatchewan, see Gibb Estate (Re), 2023 SKKB 34. In Ontario, however, waiver of solicitor-client privilege by an estate trustee will not be binding on the court. Returning to the will challenge before the court in Seepa, Justice Myers noted that the parties’ consent to disclosure could not compel the court to exercise its discretion and order production, as “[t]he court’s discretion is exercised for all affected persons and with the testator’s intentions in mind.” In fact, in White v. White, 2023 ONSC 3740, Justice Myers did not order disclosure of the testatrix’s legal file, even though the estate trustee named in her final will, who admittedly had not yet been appointed through a grant of probate, consented to its disclosure.
Justice Myers’ decision in White also indicates that there is another prerequisite to bringing a court application to obtain disclosure of a lawyer’s file through the wills exception – a cause of action must have already been pled, such as a will challenge, or proceedings to validate a non-compliant testamentary instrument under section 21.1 of the Succession Law Reform Act.
The wills exception & the minimal evidentiary threshold
When dealing with will challenges in Ontario, the wills exception to solicitor-client privilege should not be engaged unless the minimal evidentiary threshold is satisfied, since production of legal documents may not be ordered until the threshold is met: see Johnson v. Johnson, 2022 ONCA 682.
The courts in other provinces with a minimal evidentiary threshold for will challenges take a similar view. In Alberta, for example, the disclosure of solicitor-client communications should not occur unless a genuine issue for trial has been established and formal proof of the will is directed: see Gow. However, in other cases, a looser approach has been endorsed. In Nelson v. Wagner, 2021 SKQB 113, the Court of Queen’s Bench of Saskatchewan permitted disclosure of solicitor-client privileged records under the wills exception after finding that allegations of undue influence before the court were credible. The court did not require that an action or trial be ordered with respect to undue influence before an order could be issued for production of the lawyer’s file.
The wills exception & substantial compliance
At this time, the dispensing power in section 21.1 of the SLRA cannot be used to stretch the wills exception and obtain disclosure of records protected by solicitor-client privilege. Returning to the court’s decision in White, Justice Myers made it clear that an applicant may not obtain the deceased’s estate planning documents on the basis that those records could include a non-compliant instrument that could be admitted to probate under section 21.1, as such an order could become a precedent for future fishing expeditions.
It appears that the issue raised in White – whether a lawyer’s file can be disclosed pursuant to the dispensing power – has not been addressed in other provinces with similar legislation. If this issue comes up in another province, it will be interesting to see whether the doctrine of substantial compliance impacts production under thewills exception.
Thank you for reading, and have a great day!