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Joint Retainers and the Wills Exception

The wills exception is frequently invoked in order to ascertain what the testator’s intentions are after his or her death. The exception allows a solicitor to disclose his notes and records surrounding the will of the deceased. The principle behind what would otherwise be a breach of a solicitor’s duty of confidentiality to his client is that the client would want the notes disclosed as it would allow his wishes through his will to be carried out. Thus upon the client’s death the confidentiality can be waived to understand his intentions through his will.

The exception was famously described in Goodman Estate v. Geffen1 where Wilson J for the Supreme Court of Canada stated:

In my view, the considerations which support the admissibility of communications between solicitor and client in the wills context apply with equal force to the present case. The general policy which supports privileging such communications is not violated. The interests of the now deceased client are furthered in the sense that the purpose of allowing the evidence to be admitted is precisely to ascertain what her true intentions were. And the principle of extending the privilege to the heirs or successors in title of the deceased is promoted by focusing the inquiry on who those heirs or successors properly are. In summary, it is, in the words of Anderson Surr. Ct. J. in Re Ott, supra, “in the interests of justice” to admit such evidence.

Therefore it is quiet common where there is a will challenge or an application brought concerning the interpretation of an ambiguity in a will to facilitate the comprehension of the testator’s intentions through an order for directions for the drafting solicitor’s file. This is justified under the wills exception.

An interesting question arises about whether the wills exception applies to a solicitor’s notes that are the product of a joint retainer. Where the notes include information about the deceased and a current surviving spouse and are so intertwined that the notes can’t be separated as between the surviving spouse and the deceased the Court is faced with a dilemma. By disclosing the solicitor’s notes for the purposes of discovering the deceased testator’s intentions the surviving spouse’s confidentiality is violated.

Such a situation was faced by the Manitoba Court of Queen’s Bench recently in Durand v. Durand Estate2. In Durand an issue arose surrounding an ambiguity in the deceased’s will and its interpretation was necessary. The deceased’s son brought a motion seeking the disclosure of the testator’s solicitor’s file. The wife of the testator opposed the motion as she claimed the notes from the joint retainer were inseparable from her testamentary planning and would therefore violate her confidentiality.

The Court ruled in favor of the son of the deceased and ordered the solicitor’s file disclosed notwithstanding that the mother’s confidently would be impinged. In justifying its decision the Court at paragraph 25 stated:

In my view, the question must be answered by taking into account an assumed intention of the surviving spouse when she attended with her husband to give instructions to the lawyer. The normal situation would be that when two people make wills under a joint retainer of one lawyer, they each know what is in the other’s will and they each have either agreed to those provisions or have acquiesced to them. The lawyer should not act for the two clients if a difference exists between them. The deceased client has essentially said to the lawyer – “I instruct you to draft my wife’s (husband’s) will in the way in which she (he) has instructed you in my presence.” The instructions of the surviving client essentially become an extension of the instructions of the deceased client. Since the Wills Exception is directed to disclosure of the deceased client’s instructions to his solicitor, where segregation of instructions is not possible, the Wills Exception should also extend to notes which might encroach on the instructions of the surviving spouse. To suggest otherwise would allow a surviving client to frustrate the clarification of the deceased client’s intentions even though the surviving client must have been aware of them when they met jointly with their solicitor. In my view, both clients to a joint retainer take the risk when they agree to provide joint instructions to one lawyer that their solicitor-client privilege might be lost if one of their privileges succumbs to the Wills Exception. This should especially be the case where the issue arising from the will is whether the surviving client is to inherit absolutely all or some of the property of the deceased client.

Analysis:

It would be prudent for a drafting solicitor of wills in a joint retainer to keep separate notes for each spouse so that in the event there is estate litigation the solicitor’s notes from the surviving spouse would be protected from court ordered disclosure.

As the Court in Durand stated:

The two clients could simply use separate lawyers or, meet with the lawyer at separate times, or instruct the lawyer to keep his/her notes of their respective instructions separate from those of the other.3

1. , [1991] 2 S.C.R. 353 (S.C.C.)

2. 2015 MBQB 132

3. 2015 MBQB 132 at para. 26.

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