Written on
May 17, 2012 – 7:00 am | by
Justin de VriescloseAuthor: Justin de Vries
Name: Justin de Vries
Email: jdevries@devrieslitigation.com
Site: http://www.devrieslitigation.com
About: Justin has been consistently named as one of the Best Lawyers in
Canada/Trusts & Estates. He is an accomplished litigator who has
appeared before all levels of the Ontario Court & the Federal Court of
Canada. Justin's areas of expertise include: estate, trust, and
capacity litigation, as well as probate applications and estate
administration. He regularly speaks on estate, trust and capacity
issues.See Authors Posts (26)
The executors named in Alexandra Bion’s 2007 will renounced. To her credit, the stepdaughter, Ms. Hope, stepped forward and agreed to apply for a certificate of appointment of estate trustee with a will (i.e. probate). However, Ms. Hope did not have the original will. The good news is that the original will was not lost or missing, but with the drafting solicitor, Mr. Martin, who was still in practice.
Ms. Hope asked Mr. Martin for the original will so that she could apply to the court for the certificate of appointment, which requires that the original will accompany the application. Mr. Martin refused and responded as follows: “[D]ue to the Rules of Professional Practice relating to confidentiality and solicitor-client privilege, I cannot comply with your request without a court order”. Mr. Martin’s understanding of the law was that he could only provide the original will to the estate trustee. However, Mr. Martin knew that there was no estate trustee. Both Mr. Martin and his co-estate trustee had renounced.
In the face of a failed letter writing campaign by Ms. Hope’s counsel to get Mr. Martin to produce the original will, Ms. Hope was left with little choice but to bring a motion for an Order compelling Mr. Martin to deliver the original will. Mr. Martin consented to the Order. The costs of the motion were to be paid by the estate. The Order was readily signed by the court, but before doing so, Justice Brown “… wish[ed] to offer a few comments on how the parties might have avoided the costs and delay associated with this motion”.
The court considered the underlying principle and rationale on which solicitor/client privilege rests. The court succinctly noted that there were situations where solicitor/client privilege did not even arise as where the interest of the party seeking the information was the same as that of the client who retained the solicitor in the first place. Moreover, the expectation of a testatrix is that her will will be produced and her wishes honoured and performed. As such, the court held that where the interests of a party seeking the production of a will were the same as the testatrix, the will should be disclosed. The Commentary regarding Rule 2.03(1) of the Rules of Professional Conduct supported such disclosure in commenting that “[i]n some situations, the authority of the client to disclose may be implied”.
Justice Brown concluded his comments as follows: “… the real issue facing solicitors who are asked to produce the original of a will is whether the person making the request possesses the authority to do so. The appropriate response will depend upon the particular circumstances of the case and the application of practical judgment and common sense. Where a named executor makes the demand, production should be made. Where a solicitor is faced with conflicting demand, he can legitimately required the conflicting parties to obtain a court order. However, where, as here, the solicitor knew that both executors had renounced and there was no evidence of conflicting demands to assume administration of the estate, the solicitor should have exercised some practical judgment to ensure that the testatrix’s intentions were preformed without imposing unnecessary costs on the estate”
Conclusion: Litigate with a dash of common sense and practical judgment.
Happy (sensible) litigating and enjoy the long weekend.
Justin
Posted in Estate Planning
