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- Original Wills: Privilege and Lien Issues
Can a lawyer disclose the existence of an original will and deliver possession of it to an identified personal representative?
This article does not address the broader, more complex questions of solicitor-client privilege in estate litigation. Although it is recommended that lawyers give original wills to the testator client with appropriate instructions for storage, they sometimes remain in the lawyer’s file or vault. Following the death of the testator, the personal representative named in the will generally needs it in order to apply for probate and proceed with administration of the estate. Where the lawyer is not retained by the estate, the lawyer must provide the original will to the named personal representative.
Solicitor-client privilege survives the death of a former client. The personal representative steps into the shoes of the deceased client and can waive the privilege as if the testator was alive and waived it personally. Privilege applies to all matters between the lawyer and the deceased client, including the will and the will file. However, the personal representative does not obtain the authority to waive privilege until formal appointment in the probate process: Hicks Estate v. Hicks,  O. J. No. 1426.
It is, however, a well-recognized exception to this principle that a lawyer may disclose confidential communications of the deceased client to prove the “true intentions” of the testator: Stewart v. Walker (1903), 6 0.L.R. 495; Geffen v. Goodman Estate,  2 S.C.R. 353. But where the lawyer’s evidence is sought to attack the will or for an unrelated or collateral purpose the privilege will not be waived by the court: Fawcett Estate,  B.C.J. No. 629. It seems self-evident that disclosure in support of the deceased client’s own testamentary instructions and wishes cannot adversely affect his rights or interests, so a lawyer should disclose information to the court about the making of the will.
It follows from this “wills exception” that a drafting lawyer should deliver up the original will to the named personal representative or other individuals who may be applying to administer the will. To maintain privilege and retain the will would interfere with the client’s instructions. It is recommended that Alberta lawyers request and examine satisfactory identification from the named executor. When the request comes from another lawyer, it should be confirmed that the requesting lawyer followed a similar process, such as the Law Society Client Identification rules. Privilege prevails and must be maintained respecting all other matters and files of the deceased client until the personal representative is properly appointed.
Can a lawyer assert a solicitor’s lien over an original will?
A solicitor’s lien is proprietary in nature and attaches any property of the client in the possession of the lawyer. Client files and trust money unequivocally owing to the client are clearly the property of the client. So also are an original will and related work product of the lawyer. As a result, when the instructing client has failed to pay the drafting lawyer, the lawyer can maintain a claim of lien respecting the original will: Szabo Estate v. Adelson,  O.J. No. 636. See also Re Young Estate,  A.J. No. 295.
A dilemma of sorts confronts the lawyer who asserts a lien. The personal representative of the deceased client is obviously not the testator and has no personal obligation to pay the drafting lawyer’s fee account. The estate itself has the obligation to pay the testator’s debts but it has not yet come into existence. Claiming a lien may frustrate the probate of the estate and the interests of the former client, as well as delay payment to the lawyer. If a court application becomes necessary, then recent authority suggests that the drafting lawyer who seeks to assert a lien might be liable for costs for causing the estate unnecessary expense: Hope v. Martin,  O.J. No. 4165. To avoid this undesirable and embarrassing outcome, the Practice Advisors recommend that lawyers strive to find reasonable terms for releasing the will document and securing payment of fees.