Tag: records

05 Jun

Who can compel the release of a lawyer’s file after death?

Stuart Clark Litigation Tags: , , , , , , , , , , , , , , , , , , 0 Comments

The notes and records of the lawyer who assisted the deceased with their estate planning can play an important role in any estate litigation. As a result, it is not uncommon for a drafting lawyer to receive a request from individuals involved in estate litigation to provide them with a copy of their notes and files relating to the deceased’s estate planning. But can the lawyer comply with such a request?

The central concern involved for the lawyer is the duty of confidentiality which they owe to the deceased. This duty of confidentiality is codified by rule 3.3-1 of the Law Society of Ontario’s Rules of Professional Conduct, which provides:

“A lawyer at all times shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and shall not divulge any such information unless expressly or impliedly authorized by the client or required by law to do so.

The duty of confidentiality and privilege which is owed to the deceased by the lawyer survives the deceased’s death. This was confirmed by the court in Hicks Estate v. Hicks, [1987] O.J. No. 1426, where, in citing the English authority of Bullivant v. A.G. Victoria, [1901] A.C. 196, it was confirmed that privilege and the duty of confidentiality survive death, and continues to be owed from the lawyer to the deceased. With respect to the question of who may waive privilege on behalf of the deceased following their death, Hicks Estate v. Hicks confirmed that such a power falls to the Estate Trustee under normal circumstances, stating:

“It is clear, therefore, that privilege reposes in the personal representative of the deceased client who in this case is the plaintiff, the administrator of the estate of Mildred Hicks. The plaintiff can waive the privilege and call for disclosure of any material that the client, if living, would have been entitled to from the two solicitors.”

Simply put, the Estate Trustee may step into the shoes of the deceased individual and compel the release of the lawyer’s file to the same extent that the deceased individual could have during their lifetime.

In circumstances in which the validity of the Will has been challenged, the authority of the Estate Trustee is also being challenged by implication, as their authority to act as Estate Trustee is derived from the Will itself. In such circumstances, the named Estate Trustee may arguably no longer waive privilege and/or the duty of confidentiality on behalf of the deceased individual. Should the notes and/or records of the drafting lawyer still be required, a court order is often required waiving privilege and/or the duty of confidentiality before they may be produced.

Whether or not a lawyer can release their file following the death of a client will depend on the nature of the dispute in which such a request is being made, and who is making the request. If there is a challenge to the validity of the Will or the Estate Trustee’s authority, it is likely that a court Order will be required before the lawyer may produce their file regardless of who is requesting the file. If the dispute does not question the Estate Trustee’s authority, such as an Application for support under Part V of the Succession Law Reform Act, the lawyer should comply with the request to release their file so long as the requesting party is the Estate Trustee. If the requesting party is not the Estate Trustee, and the Estate Trustee should refuse to provide the lawyer with their authorization to release the file, matters become more complicated, and may require a court Order before the lawyer may release their file.

Thank you for reading.

Stuart Clark

12 Aug

Deductions from Compensation – Hull on Estates and Succession Planning Podcast #125

Hull & Hull LLP Hull on Estate and Succession Planning, Passing of Accounts, Podcasts Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , 0 Comments

Listen to Deductions from Compensation.

This week on Hull on Estates and Succession Planning, Ian and Suzana finish up the discussion on the question of accounting by reviewing deductions from compensation and briefly sum up the procedure of the passing of accounts.

Comments? Send us an email at hullandhull@gmail.com, call us on the comment line at 206-457-1985, or leave us a comment on the Hull on Estate and Succession Planning blog.

READ MORE

03 Jun

Accounting Under the Powers of Attorney – Hull on Estates #113

Hull & Hull LLP Hull on Estates, Passing of Accounts, Podcasts, Power of Attorney Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , 0 Comments

Listen to Accounting Under the Powers of Attorney

This week on Hull on Estates, Diane and Paul discuss accounting under the powers or attorney, the duty to account after the guarantor has passed away and the De Zorzi Estate v. Read case (2008, O.J. No. 944).

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.

READ MORE

27 May

Keeping Good Records – Hull on Estate and Succession Planning Podcast #114

Hull & Hull LLP Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Wills Tags: , , , , , , , , , , , , , , , 0 Comments

Listen to Keeping Good Records

This week on Hull on Estate and Succession Planning, Ian and Suzana talk about the importance of keeping good records in order to account for your conduct financially.

Comments? Send us an email at hullandhull@gmail.com, call us on the comment line at 206-457-1985, or leave us a comment on the Hull on Estate and Succession Planning blog.

READ MORE

13 May

Accounting – Hull on Estate and Succession Planning #112

Hull & Hull LLP Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Passing of Accounts, Podcasts, PODCASTS / TRANSCRIBED, Show Notes Tags: , , , , , , , , , , 0 Comments

Listen to Accounting

This week on Hull on Estate and Succession Planning, Ian and Suzana discuss how to prepare for review by the beneficiaries of the estate by keeping all accounts in order.

To open this week’s show, they remind listeners that they did this week’s episode of Hull on Estates (#110). They also extend their congratulations to Terry Fallis for winning the Stephen Leacock Medal for his book, The Best Laid Plans.

If you have any comments that you would like to share, send us an email at hullandhull@gmail.com or leave us a message on our comment line: 206-457-1985. You can also find our blog at hullandhull.com.

READ MORE

SUBSCRIBE TO OUR BLOG

Enter your email address to subscribe to this blog and receive notifications of new posts by email.
 

CONNECT WITH US

CATEGORIES

ARCHIVES

TWITTER WIDGET