Collins Estate (Re): No Joint Interest Exception Where Interests are Adverse
Collins Estate (Re), 2026 ABCA 227
John Collins passed away on or about April 23, 2019 (“the Deceased” or “Estate”).
On or about March 30, 2015, the Deceased executed a Last Will and Testament (the “2015 Will”) which made a bequest to the University of Calgary and distributed the remainder of the Estate to the Deceased’s wife, Elise Collins, for life, and the residue to the Deceased’s son, John Collins (“John”), and his sister.[1]
Purportedly, on or about August 10, 2016, the Deceased executed a subsequent Last Will and Testament (the “2016 Will”) removing Elise as a beneficiary and distributing the residue of the Estate to the Deceased’ sister, save and except for specific bequests to the University of Calgary.[2] Pursuant to a clause in the 2016 Will that allowed the managing partner of an accounting firm to choose two partners to serve as personal representative, Brian McColl and Beverly Foy were selected to act.[3]
In October 2019, Brian and Beverly applied for probate in accordance with the 2016 Will. John challenged the validity of the 2016 Will on the basis that the Deceased lacked the requisite capacity to execute same.[4]
In or around October 2020, the Royal Trust Corporation of Canada was appointed in Brian and Beverly’s place as the personal representative of the Estate pending litigation.[5]
In February 2022, the challenge to the 2016 Will was heard, and John was permitted to apply for probate in accordance with the 2015 Will.
In January 2023, John sought the disclosure of solicitor files relating the administration of the Estate. The Respondents, Royal Bank of Canada, Brian McColl and Beverly Foy objected citing solicitor-client privilege.[6]
The chambers judge held that communications between counsel and the respondents relating to day-to-day estate administration tasks were not privileged because the parties shared a joint interest in the documents.[7] However, the chambers judge further held that communications exchanged before the respondents accepted their roles as personal representatives, such as whether they should accept their role and the related obligations, were privileged.
Issue:
The issue for the Court of Appeal to determine was whether solicitor-client privilege can be used to shield communications between a predecessor and successor personal representative.[8]
Application:
The Court of Appeal began by highlighting that “solicitor-client privilege is fundamental to the proper functioning of our legal system”.[9]
At the chambers hearing, John argued that as a successive personal representative bound “by the same legal and equitable obligations to the beneficiaries, meant that commonality existed for the joint interest exception to solicitor-client privilege to apply”.[10] However, the chambers judge found that John had not discharged his onus in establishing that an exception applied in these circumstances.[11] Nonetheless, the chambers judge reasoned that the exception “would not apply where he was adverse to the personal representative in any capacity at the time the communications arose”.[12]
The Court of Appeal clarified that the joint interest exception “is based on commonality in interest in the subject matter of the communications at the time it arises”. On the facts, when Brian and Beverly were acting as personal representatives, John acted adverse in interest to the Estate, for example, by challenging the 2016 Will. The appellate court found the chambers judge’s reasoning was grounded in evidence and supported by the record. Accordingly, the chamber judge’s decision was afforded deference and “aimed at protecting solicitor-client privilege between each of the respondents and their counsel where legal advice was sought and given related to “specific disputes and disagreements” with the appellant”.[13] As such, the appeal was dismissed.
Takeaways:
Solicitor-client privilege is a fundamental consideration that protects communications where interests are adverse and the joint interest exception requires commonality at the time of the communication to apply.
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[1] Collins Estate (Re), 2026 ABCA 227 (CanLII) at para 2.
[2] Ibid at para 4.
[3] Ibid para 4.
[4] Ibid at para 6.
[5] Ibid at para 7.
[6] Ibid at para 9.
[7] Ibid at para 11.
[8] Ibid at para 16.
[9] Ibid at para 14, citing Canada (Privacy Commissioner) v Blood Tribe Department of Health, 2008 SCC 44 at para 9.
[10] Ibid at para 16.
[11] Ibid at para 17.
[12] Ibid at para 17.
[13] Ibid at para 21.
Written by: Jessica Homer
Posted on: September 28, 2026
Categories: Commentary, Wills
Collins Estate (Re), 2026 ABCA 227
John Collins passed away on or about April 23, 2019 (“the Deceased” or “Estate”).
On or about March 30, 2015, the Deceased executed a Last Will and Testament (the “2015 Will”) which made a bequest to the University of Calgary and distributed the remainder of the Estate to the Deceased’s wife, Elise Collins, for life, and the residue to the Deceased’s son, John Collins (“John”), and his sister.[1]
Purportedly, on or about August 10, 2016, the Deceased executed a subsequent Last Will and Testament (the “2016 Will”) removing Elise as a beneficiary and distributing the residue of the Estate to the Deceased’ sister, save and except for specific bequests to the University of Calgary.[2] Pursuant to a clause in the 2016 Will that allowed the managing partner of an accounting firm to choose two partners to serve as personal representative, Brian McColl and Beverly Foy were selected to act.[3]
In October 2019, Brian and Beverly applied for probate in accordance with the 2016 Will. John challenged the validity of the 2016 Will on the basis that the Deceased lacked the requisite capacity to execute same.[4]
In or around October 2020, the Royal Trust Corporation of Canada was appointed in Brian and Beverly’s place as the personal representative of the Estate pending litigation.[5]
In February 2022, the challenge to the 2016 Will was heard, and John was permitted to apply for probate in accordance with the 2015 Will.
In January 2023, John sought the disclosure of solicitor files relating the administration of the Estate. The Respondents, Royal Bank of Canada, Brian McColl and Beverly Foy objected citing solicitor-client privilege.[6]
The chambers judge held that communications between counsel and the respondents relating to day-to-day estate administration tasks were not privileged because the parties shared a joint interest in the documents.[7] However, the chambers judge further held that communications exchanged before the respondents accepted their roles as personal representatives, such as whether they should accept their role and the related obligations, were privileged.
Issue:
The issue for the Court of Appeal to determine was whether solicitor-client privilege can be used to shield communications between a predecessor and successor personal representative.[8]
Application:
The Court of Appeal began by highlighting that “solicitor-client privilege is fundamental to the proper functioning of our legal system”.[9]
At the chambers hearing, John argued that as a successive personal representative bound “by the same legal and equitable obligations to the beneficiaries, meant that commonality existed for the joint interest exception to solicitor-client privilege to apply”.[10] However, the chambers judge found that John had not discharged his onus in establishing that an exception applied in these circumstances.[11] Nonetheless, the chambers judge reasoned that the exception “would not apply where he was adverse to the personal representative in any capacity at the time the communications arose”.[12]
The Court of Appeal clarified that the joint interest exception “is based on commonality in interest in the subject matter of the communications at the time it arises”. On the facts, when Brian and Beverly were acting as personal representatives, John acted adverse in interest to the Estate, for example, by challenging the 2016 Will. The appellate court found the chambers judge’s reasoning was grounded in evidence and supported by the record. Accordingly, the chamber judge’s decision was afforded deference and “aimed at protecting solicitor-client privilege between each of the respondents and their counsel where legal advice was sought and given related to “specific disputes and disagreements” with the appellant”.[13] As such, the appeal was dismissed.
Takeaways:
Solicitor-client privilege is a fundamental consideration that protects communications where interests are adverse and the joint interest exception requires commonality at the time of the communication to apply.
—
[1] Collins Estate (Re), 2026 ABCA 227 (CanLII) at para 2.
[2] Ibid at para 4.
[3] Ibid para 4.
[4] Ibid at para 6.
[5] Ibid at para 7.
[6] Ibid at para 9.
[7] Ibid at para 11.
[8] Ibid at para 16.
[9] Ibid at para 14, citing Canada (Privacy Commissioner) v Blood Tribe Department of Health, 2008 SCC 44 at para 9.
[10] Ibid at para 16.
[11] Ibid at para 17.
[12] Ibid at para 17.
[13] Ibid at para 21.
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