When a solicitor is advising on estate administration, who does the solicitor and client privilege belong to?

Estates do not have lawyers; estate trustees have lawyers. 

Although lawyers commonly refer to themselves as the “lawyer for the estate”, the solicitor is in fact the solicitor for the estate trustee.  In Coppel v. Coppel Estate, [2001] O.J. No. 5246 (Ont. S.C.J.), the estate trustee paid his own legal fees out of the estate to defend an action against him by the beneficiaries for negligent fulfilment of his duties as estate trustee. 

Justice Quinn held that without the benefit of a court order or consent of the beneficiaries, the estate trustee could not pay his legal fees out of the estate. Justice Quinn held: “I think the source of the problem is the misconception by …[the law firm] that they are solicitors for the estate.  Instead, they are solicitors for the Estate Trustee:  Estates cannot hire lawyers.”

If there is more than one estate trustee, a lawyer should make it clear from the outset whether or not the retainer is a joint one.  If the solicitor has been retained by only one of the estate trustees, and a dispute later arises as between the estate trustees, it may be possible for one estate trustee to assert solicitor and client privilege against the other.

Happy Friday,

Justin