In the recent Ontario Superior Court decision, Allison v. McBride 2025 ONSC 2828, Justice Myers addressed the limits of when a deceased person’s lawyer-client privilege may be waived in estate matters.
Facts of the Case
In this case, the Deceased’s spouse, Judith, sought access to the files her late husband’s lawyer, hoping to find documents that might be capable of being validated as a will under section 21.1 of the Succession Law Reform Act (SLRA).
The deceased had an old will that predated his relationship with Judith. Evidence showed he intended to make a new will and had consulted with several lawyers. He met multiple times with a lawyer and completed a pre-will checklist stating his old will was null and void. While he signed new powers of attorney naming Judith as attorney in November 2023, he was hospitalized in December, 2023, and died a few weeks later without signing a new will.
The Legal Question
In the motion for directions, Justice Myers considered whether the “wills exception” to lawyer-client privilege applies when searching for documents that might support a validation claim under section 21.1 of the SLRA. The “wills exception,” which was discussed in Geffen v. Goodman Estate, normally allows access to privileged communications when necessary to determine a deceased’s true intentions in an existing will or testamentary document. Section 21.1 of the SLRA would then allow a court to recognize a document as valid as a will even if it wasn’t properly executed, provided that it sets out the deceased’s “fixed and final” testamentary intentions. This provision is typically applied to documents that failed to meet the formal execution requirements of a will.
The Court’s Reasoning
Justice Myers found that without a signed will or document expressing testamentary intention, there’s no presumption that the deceased wanted their intentions disclosed. He emphasized that estate planning conversations are “intensely private” and protected by “nearly inviolable lawyer-client privilege.”
The court reasoned that if the deceased had reached a fixed and final testamentary intention, they likely would have signed a will, as they had done with powers of attorney. Justice Myers noted that lawyer-client privilege must be “as near to absolute as possible” to ensure public confidence, and this is especially true in the estate planning context.
Justice Myers acknowledged a narrow exception applied in White v. White – where there was evidence of a document the deceased agreed was final and was ready to sign. However, Justice Myers found this exception didn’t apply in this case, as there was no evidence of a final document that the deceased was prepared to sign. Justice Myers noted that he did so on the narrowest possible basis.
The Decision
Justice Myers dismissed the motion for production of the lawyer’s file while granting the remainder of the motion (regarding interim support) on consent. The court held that the “wills exception” to lawyer-client privilege did not apply based on the facts of this case to the search for documents that may support a claim under section 21.1 of the SLRA.
Key Takeaways
This decision clearly discourages “fishing expeditions” for unknown documents that might possibly support section 21.1 claims. It preserves fact-specific circumstances where privilege might be waived, only in circumstances with strong evidence showing a document was “fixed and final” and the deceased was ready to sign it.
Estate practitioners should note the high threshold required before a court will permit access to a deceased client’s privileged communications in section 21.1 cases.
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