A recent decision of the Alberta Court of King’s Bench provides a helpful summary of several types of privilege that we encounter in wills and estates litigation, and highlights the role of that courts can take in actively protecting privilege.

In Re Kendall Estate, 2024 ABKB 313, the applicant sought production of notes made by one of the respondents in the context of a will challenge.  A copy of the notes was requested during the respondent’s cross-examination on affidavits he had filed in support of the will challenge, at which time the request that he undertake to produce a copy of his notes was refused without explanation.  It was later asserted on behalf of the respondent that his notes would not be produced because they were subject to solicitor-client privilege, being his handwritten notes made on the advice of his lawyer “and in contemplation of the strategic advice [the lawyer] was hired to provide to” the respondent prior to the deceased’s death. Justice Marion acknowledged that the evidence as to the contents of the notes was limited as a result of the position that they were privileged, and the obvious concern that revealing too much information about the notes could constitute a waiver of privilege.

Justice Marion reviewed both solicitor-client privilege and litigation privilege, which was raised only during oral submissions at the hearing.  The key points reviewed by Justice Marion can be summarized as follows, using excerpts from the decision:

Solicitor-client privilege (paragraph 16):

1. “exists where (i) communications between solicitor and client; (ii) entail the seeking or giving of legal advice; and (iii) are intended to be confidential by the parties”;
2. “broadly interpreted and covers not just the request for advice itself but a continuum encompassing all communications ‘directly related to the seeking, formulating or giving of legal advice’”;
3. “permanent”.

Litigation privilege (paragraphs 17-18):

1. “‘an important component of the adversarial system, distinct from solicitor and client privilege…designed to create a “zone of privacy” around pending or apprehended litigation’”;
2. “‘allows each litigant to prepare its case without concern that its strategies will be disclosed to its opponents…exists in tension with the overall approach that each litigant must disclose to its opponents all relevant and material records it holds’”;
3. “not permanent in duration”.

Instead of making a determination as to whether the notes were privileged on either basis without having the opportunity to first review them, the respondent has been ordered to provide his notes to the Court in a sealed envelope, with Justice Marion to review the notes with a view to determining whether they are, in fact, privileged and, if not, ordering that they be produced to the applicant as has been requested.  In addition to providing a helpful summary of common types of privilege we might encounter, This decision is a good example of the role that the courts can take in actively protecting solicitor-client and/or litigation privilege.

Thank you for reading and have a great weekend,

Nick Esterbauer