During estate administration, estate representatives like executors and estate trustees routinely seek legal advice, particularly if the estate is subject to litigation. In Canada, communications between counsel and an estate representative are generally protected by solicitor-client privilege. After all, solicitor-client privilege is a cornerstone of Canadian law – as noted by the Supreme Court of Canada, this privilege is “fundamental to the proper functioning of our legal system:” see Canada (Privacy Commissioner) v Blood Tribe Department of Health, 2008 SCC 44.
If a succeeding estate representative is subsequently appointed, however, an interesting question may arise – is the succeeding estate representative entitled to review legal advice obtained for the estate by their predecessor? Or does solicitor-client privilege restrict the production of such privileged communications?
In 2024, the Alberta Court of King’s Bench addressed this issue in Collins Estate (Re), 2024 ABKB 721, holding that a succeeding estate representative could only access legal advice relating to the ordinary administration of the estate. For more on this decision, see Suzana’s blog post from earlier this year, Is a Succeeding Estate Trustee Entitled to See the Estate’s Legal Files, Including Privileged Communications, After Estate Litigation Ends? More recently, this issue was put to the Alberta Court of Appeal in Collins Estate (Re), 2026 ABCA 227. In dismissing the appeal, the Court affirmed the original decision to limit the disclosure that the estate’s succeeding representative could obtain. Interestingly, the Court of Appeal also expressly declined to settle broader questions regarding disclosure obligations and privilege as between successive estate representatives.
Background
The factual scenario in this case was complicated by the fact that the succeeding estate representative had previously been adverse in interest to the estate and its representatives. Prior to his appointment, the succeeding estate representative had challenged the validity of the deceased’s final will, advanced a family maintenance and support claim on behalf of his mother as her attorney, and asserted interests in a privately held company associated with the estate. While the succeeding estate representative sought disclosure of all legal advice provided to the estate, including advice pertaining to the litigation, the chambers judge only ordered disclosure relating to the ordinary administration of the estate. While the judge acknowledged the existence of a limited “joint interest” exception to solicitor-client privilege in the estate context, he found that it did not apply to legal advice pertaining to litigation where the parties’ interests were adverse.
Court of Appeal Dismisses Request for Disclosure of Privileged Communications
On appeal, the succeeding estate representative argued that solicitor-client privilege should not bar the disclosure of privileged communications between successive estate representatives. Since all estate representatives share the same legal and equitable obligations to estate beneficiaries, the appellant submitted that there is sufficient commonality of interest between successive representatives to invoke the joint interest exception to solicitor-client privilege. On this basis, he argued that he was entitled to full disclosure of the prior representative’s legal files, regardless of any adverse personal interests that existed during the litigation.
The appeal was dismissed, as the Alberta Court of Appeal found that there was no basis to interfere with the original order refusing production of the requested files. The Court of Appeal noted that the chambers judge’s findings regarding adversity were entitled to deference, as they were amply supported by the record. Moreover, the Court also recognized that, because of the limited nature of exceptions to solicitor-client privilege, there was no basis to require disclosure of legal advice related to the prior estate litigation.
It also merits noting that, in dismissing the appeal, the Alberta Court of Appeal expressly declined to make any broad pronouncements regarding the relationship between successive estate representatives or the precise scope of disclosure obligations that may exist between them. Given the limited argument advanced on this point before the original chambers judge, the Court of Appeal concluded that it was neither necessary nor prudent to attempt to comprehensively address these issues on appeal.
Successor Personal Representative Could Not Waive Solicitor-Client Privilege
The succeeding estate representative also argued that he could waive any privilege related to the estate as its current representative pursuant to subsection 20(2) of Alberta’s Estate Administration Act. Subsection 20(2) provides that actions, decisions, consents, and other acts taken by an estate representative within their authority have the same effect as if they had been taken by the deceased while alive and fully capable.
The Court of Appeal rejected this argument as well, confirming that subsection 20(2) would not allow the successor estate representative to waive privilege over the records in question in light of established Supreme Court of Canada jurisprudence emphasizing the near-absolute nature of solicitor-client privilege. Citing both the Blood Tribe decision and Canada (National Revenue) v Thompson, 2016 SCC 21, the Alberta Court of Appeal confirmed that statutory provisions are not to be interpreted as authorizing intrusions on solicitor-client privilege absent clear and explicit legislative language.
As nothing in the Estate Administration Act expressly authorized a successor representative to waive privilege over communications that were otherwise protected, section 20 could not be used to compel disclosure of the disputed legal files.
Key Takeaways
The Alberta Court of Appeal’s decision in Collins Estate is a reminder that “solicitor-client privilege must be as close to absolute as possible,” including in the context of estate litigation. Since the larger question of solicitor-client privilege between predecessor and successor estate representatives remains unsettled, it is difficult to predict how the courts will handle future requests for privileged estate communications made by succeeding estate representatives. However, if privileged communications are sought from a succeeding estate representative who opposed the estate in a dispute prior to their appointment, the court will likely be reluctant to compel such production pertaining to the dispute. Moreover, it also appears improbable that an estate representative could waive the privilege themselves using their general statutory powers, as the Court of Appeal confirmed that solicitor-client privilege can only be waived if legislation expressly grants this power.
Thank you for reading, and enjoy the rest of your day!
Ian.