Solicitor-client privilege is a fundamental legal principle that protects communications between lawyers and their clients. This principle allows clients to speak freely in front of their lawyers without fear of their conversations being disclosed to anyone else. In the estates world, the question can sometimes become, what happens to solicitor-client privilege when the client dies and production of the solicitor’s file is sought? The recent case of Butt et al. v. The Estate of Robert John Kelly et al., 2025 ONSC 4646 discusses this issue.

In this case, the applicant brought a motion for, among other things, the production of all lawyer records, notes, and files of the solicitor who provided legal services to the deceased concerning the deceased’s separation from the respondent, his estate planning, and financial affairs. The respondent submitted that the solicitor’s files should not be produced because they are subject to solicitor-client privilege which survives the death of the deceased. The respondent also submits that the wills exception to solicitor client privilege does not apply.

To provide a brief outline of the facts, the applicant and the deceased were married and separated on October 3, 2014 and had three children together. The respondent and the deceased began a relationship in 2015 and separated in March 2021. In May 2021, the deceased consulted with the solicitor about his separation from the respondent.

The deceased was hospitalized for approximately 2 months between June and August 2021, the respondent visited him frequently and became more involved with his life.

In May 2021, the deceased and the respondent were not on great terms. The respondent was making disparaging remarks about the deceased and she filed a police report on May 19, 2021. Then, within approximately one month, and once the deceased was hospitalized, the dynamic completely changed regarding the relationship between the deceased and the respondent.

Throughout July and August 2021, the deceased executed the following documents that favoured the respondent:

• On July 6, 2021, the deceased executed a Power of Attorney for Personal Care appointing the respondent.
• On July 16, 2021, the deceased executed a change in beneficiary designation for his Supplementary Death Benefit, designing the respondent as 100% beneficiary.
• On July 26, 2021, the deceased executed a Power of Attorney for Property appointing the respondent.
• On August 4, 2021, the deceased executed a change to his life insurance policy, naming the respondent as a 40% beneficiary and each of the applicant and the deceased’s children as 20% beneficiaries.
• On August 8, 2021, the deceased executed a Last Will and Testament, naming the respondent as the sole estate trustee, leaving 20% of the Estate to each of the applicant and the deceased’s three children, $1 to the applicant, $5,000 to a church, and the residue of the Estate to the respondent.

It is alleged by the applicant that towards the end of June and in early July 2021, the deceased was no longer coherent. The deceased was discharged from the hospital on August 12, 2021 and died 13 days later. When the deceased was discharged, he moved in with the respondent and lived there until his death.

When determining whether the solicitor’s files should be produced, the court cited various rules from the Rules of Civil Procedure including rule 75.06 (which allows any person who appears to have a financial interest in an estate to move for directions) and rule 30.10(1) (which gives the court discretion to order the production of documents from non-parties that are not privileged, are relevant to a material issue in the proceeding, and where it would be unfair to require the moving party to proceed without discovery of such documents).

The court then considered the wills exception to solicitor client privilege, which allows the court to order production of the solicitor’s file to determine the testator’s true intentions. The court cited the following principles and justifications for this exception:

• To hold otherwise would deprive the party contesting the will of a considerable part of the proof of its case;
• The essence of a will challenge is to determine the testator’s intention;
• A principled approach to admissibility questions, as opposed to a “pigeon hole” approach to rules of evidence, must prevail;[1]and
• The wills exception can extend to the production of unredacted documents relevant to the testator’s intention and which disclosure may have provided information about the testator’s capacity, susceptibility to undue influence and the nature of the relationship with the other party.[2]

In the analysis, the Court found that there were serious suspicions of the deceased’s susceptibility to undue influence due to the respondent’s reappearance in the deceased’s life shortly before his death, the allegations of lack of capacity, and the various changes the deceased made to his testamentary documents.

While the evidence suggested that the solicitor was only retained by the deceased to deal with his entitlement to property following his separation from the respondent, the Court was prepared to extend the wills exception for the following reasons:

• The deceased’s meeting with the solicitor in May 2021 is so closely related in time to the creation of testamentary documents and changes to his existing death benefit and life insurance policy in July and August 2021 that were made under suspicious circumstances;
• The solicitor’s retainer occurs during a critical window when the deceased was planning his financial affairs, including advancing property claims against the respondent; and
• All of the deceased’s testamentary documents were not prepared by a lawyer, but were signed while the deceased was hospitalized. The witnesses to the deceased’s execution of the testamentary documents were purported to be friends of the respondent.

The Court found that the solicitor’s files are the only existing legal documents “within a reasonable nexus of time (i.e. less than two months before the creation of the first power of attorney) and before Mr. Kelly’s (the deceased) hospitalization, that are likely to provide some insight into his true intentions as to the planning of his financial affairs, which I believe includes his estate, his outstanding support obligations to the applicant and his children, and his initial dispute with the respondent”.

As a result, and in the specific circumstances of the case, the Court found that the interests of justice demanded that the solicitor’s file be produced and that the integrity of the “testamentary process” outweighed the interests of maintaining the solicitor-client privilege between the deceased and the solicitor.

[1] Geffen v. Goodman Estate, 1991 CanLII 69 (SCC), [1991] 2 SCR 353, at p. 384-387

[2] Waters v. Henry, 2023 ONSC 4465, at para. 22.