Solicitors responsible for having drafted the will of a deceased are frequently asked to produce their files by third parties in estate litigation. These requests often come from disappointed beneficiaries who may seek to challenge the will, assess the involvement of another party, or explore potential claims against the drafting solicitor. While disclosure obligations in estate matters can be broader than in ordinary civil litigation, the voluntary release of a solicitor’s file to a third party carries real and often underappreciated risks, even when the solicitor took all appropriate measures to ensure they were fulfilling their obligations. Third parties are to be distinguished from Estate Trustees of the deceased, who are generally entitled to a solicitor’s file in the precise manner that the deceased client would have been.
Disappointed Beneficiaries and Fishing Expeditions
Requests for solicitor’s files frequently arise in the context of a disappointed beneficiary looking for a cause to make a claim against the solicitor.
While Ontario law recognizes that disappointed beneficiaries may, in certain circumstances, advance claims against drafting solicitors, courts remain alert to disclosure requests that are exploratory rather than issue‑driven.
The Ontario Superior Court’s decision in Officer v. The Estate of Charles Herbert Officer et al., 2025 ONSC 1978, is instructive. Although decided in the context of a dependant support claim, the Court rejected broad and unfocused production requests characterized as a “fishing expedition.” The Court reaffirmed that disclosure must be guided by relevance, necessity, and proportionality rather than speculation.
The same concern arises where beneficiaries seek wholesale production of a solicitor’s estate planning or administration file in the hope of uncovering negligence, undue influence, or misconduct. Absent a properly grounded evidentiary basis, courts are reluctant to permit such intrusions, particularly where solicitor-client privilege and third‑party privacy interests are engaged.
The Deemed Undertaking Rule
Where a solicitor’s file, or portions of it, are produced in the context of discovery in litigation, Rule 30.1(3) of the Rules of Civil Procedure, known as the deemed undertaking rule, may be engaged. Under the deemed undertaking rule, parties and their counsel are deemed to undertake not to use information obtained through discovery for any purpose other than the proceeding in which it was produced.
Ontario courts have enforced this rule strictly. In Sciucca v. Yoon, 2020 ONSC 6539, the Court struck a claim that relied on information obtained through discovery in a prior proceeding, holding that such collateral use undermined the integrity of the litigation process.
Although the Court retains discretion to relieve parties against the deemed undertaking where the interests of justice outweigh any resulting prejudice, that relief is neither automatic nor routine. Solicitors who produce their files outside of this context risk being sued by the party seeking their file.
When parties seek an Order for the drafting solicitor to release their file, the solicitor is likely to lose any protection offered by the deemed undertaking rule if they consent to the sought Order. While the deemed undertaking rule does not directly apply in this context, the solicitor may seek to argue that they fall under analogous protection under the deemed undertaking rule, which may or may not be effective.
Conclusion
Solicitors are advised to consider the potential application of the deemed undertaking rule, in addition to their legal and ethical obligations to their client, before deciding how to proceed in the face of a request of a third party for their file in Estate litigation.