Attorney-client privilege after death of client

[Boyo_Jim]

I’m talking about a civil case and the circumstances of drawing up a will. Let’s say one of my sisters leaves me the bulk of her estate in her will, and after death, another sister takes exception to this and tries to break the will in court.

Can either party to the suit have a reasonable expectation that the lawyer who drew up the will would be able to testify in the case? Testify not about the structure or legality of the document, but about discussions that may have occured about intent and justifcations for the disposition of assets, or possibly about her mental state at the time she signed off on it.

This has some potential for real-world applicability. One soster of mine, who is healthy and well and will probably outlive me, is considering cutting our “evil” sister out of her will and leaving everything to me. She has no spouse or children, and our parents are dead, if any of these things matter. We also know our “evil” sister is at least somewhat litigation prone, as she has sued at least 3 times that I know of.

In any case, my “good” sister has not decided whether to make such changes yet, but we talked about what I might do if the evil one sues, and what resources would be available to me.

I’m not even sure I would be a party to this, as I won’t be the executor of the estate, just the beneficiary. She is thinking about designating part of her estate as a defense fund, so the executor can defend the will in court.

And yes, she and I both understand that opinions here are no substitute for real lawyers with expertise in our local laws. In fact, she will absulutely have to consult with her lawyer to make ANY changes. It’s just that with our personal knowledge of how our evil sister operates, we got to brainstorming ideas to head her off.

If a Mod feels this thread is better suited to IMHO, please move it. I think it kind of crosses over between opinion and fact.

[msmith537]

@Boyo Jim

Can either party to the suit have a reasonable expectation that the lawyer who drew up the will would be able to testify in the case? Testify not about the structure or legality of the document, but about discussions that may have occured about intent and justifcations for the disposition of assets, or possibly about her mental state at the time she signed off on it.

No.

[Gfactor]

I’m not about to give you legal advice about a specific situation. Here are the relevant statutes, though:

(3) Who may claim the privilege. The privilege may be claimed by the client, the client’s guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the lawyer at the time of the communication may claim the privilege but only on behalf of the client. The lawyer’s authority to do so is presumed in the absence of evidence to the contrary.

(4) Exceptions. There is no privilege under this rule:

905.03(4)(a)
(a) Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; or

905.03(4)(b)
(b) Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction; or

http://nxt.legis.state.wi.us/nxt/gateway.dll/Statutes%20Related/Wisconsin%20Statutes/15508/15512?f=templates$fn=document-frame.htm$3.0$q=[field%20folio-destination-name%3A'905.03']$uq=$x=Advanced$up=1#0-0-0-83195

[pravnik]

GFactor beat me to it, but what the hell.

If you read the Vince Foster/Ken Starr case that was linked to closely, you’ll see it also recognized the testamentary exception to attorney client privilege after death. Generally, the privilege extends past the client’s death, but the law often recognizes an exception when two parties are claiming an interest through the same decedent. The rationale is that the decedent would have consented to diclosure of the information in order to carry out their testamentary intentions.

But other than these two decisions, cases addressing the existence of the privilege after death-most involving the testamentary exception-uniformly presume the privilege survives, even if they do not so hold. See, e.g., Mayberry v. Indiana , 670 N. E. 2d 1262 (Ind. 1996); Morris v. Cain , 39 La. Ann. 712, 1 So. 797 (1887); People v. Modzelewski , 611 N. Y. S. 2d 22, 203 A. 2d 594 (1994). Several State Supreme Court decisions expressly hold that the attorneyclient privilege extends beyond the death of the client, even in the criminal context. See In re John Doe Grand Jury Investigation , 408 Mass. 480, 481-483, 562 N. E. 2d 69, 70 (1990); State v. Doster , 276 S.C. 647, 650-651, 284 S. E. 2d 218, 219 (1981); State v. Macumber , 112 Ariz. 569, 571, 544 P. 2d 1084, 1086 (1976). In John Doe Grand Jury Investigation , for example, the Massachusetts Supreme Court concluded that survival of the privilege was “the clear implication” of its early pronouncements that communications subject to the privilege could not be disclosed at any time. 408 Mass., at 483, 562 N. E. 2d , at 70. The court further noted that survival of the privilege was “necessarily implied” by cases allowing waiver of the privilege in testamentary disputes. Ibid .

Such testamentary exception cases consistently presume the privilege survives. See, e.g., United States v. Osborn , 561 F. 2d 1334, 1340 (CA9 1977); DeLoach v. Myers , 215 Ga. 255, 259-260, 109 S. E. 2d 777, 780-781 (1959); Doyle v. Reeves , 112 Conn. 521, 152 A. 882 (1931); Russell v. Jackson , 9 Hare. 387, 68 Eng. Rep. 558 (V.C. 1851). They view testamentary disclosure of communications as an exception to the privilege: “[T]he general rule with respect to confidential communications . . . is that such communications are privileged during the testator’s lifetime and, also, after the testator’s death unless sought to be disclosed in litigation between the testator’s heirs.” Osborn , 561 U.S., at 1340 . The rationale for such disclosure is that it furthers the client’s intent. Id., at 1340, n. 11. 2

Indeed, in Glover v. Patten, 165 U.S. 394, 406 -408 (1897), this Court, in recognizing the testamentary exception, expressly assumed that the privilege continues after the individual’s death. The Court explained that testamentary disclosure was permissible because the privilege, which normally protects the client’s interests, could be impliedly waived in order to fulfill the client’s testamentary intent. Id., at 407-408 (quoting Blackburn v. Crawfords, 3 Wall. 175 (1866), and Russell v. Jackson, supra ).

Swidler & Berlin et al v. United States, 524 US 399 (1998).

This is not legal advice, I’m not your lawyer and you’re not my client, etc.

[Boyo_Jim]

Putting aside these particular facts, from reading these cites it appears to me that the executor of an estate COULD waive the privilege in furtherance of carrying out the wishes of the deceased, but the attorney might still claim it if there was disagreement between them about whether the testimony would be beneficial or not to the deceased. So the two would have independent vetoes over waiving the privilege.

Is this a fair summation?

If I may ask a couple of follow-ups here…

1. If the lawyer DOES waive privelige abd testify, I would assume that this would be an all or nothing deal, correct? The lawyer couldn’t suddenly stop in mid-stream and reassert the privilege if the opposing attorney started asking questions that had detrimental answers?

2. Could the attorney refuse to waive the privilege if the actual client wanted it waived? Could the client explicitly waive the privilege im the body of the will and bind the attorney to that decision?

[astro]

Wouldn’t a video tape or DVD of her reading the will in full command of her faculties put the lie to any potential claims of diminished capacity?

[Campion]

@Boyo Jim

If I may ask a couple of follow-ups here…

1. If the lawyer DOES waive privelige abd testify, I would assume that this would be an all or nothing deal, correct? The lawyer couldn’t suddenly stop in mid-stream and reassert the privilege if the opposing attorney started asking questions that had detrimental answers?

Once the privilege is waived, it is waived. One cannot use the privilege as both a shield and a sword, by revealing only those privileged matters one chooses. Once it is waived, the entire subject matter is open for review.

2. Could the attorney refuse to waive the privilege if the actual client wanted it waived? Could the client explicitly waive the privilege im the body of the will and bind the attorney to that decision?

Can an attorney maintain the privilege in the face of instructions from the client to waive the privilege? Generally, no. Can the client explicitly waive the privilege and thereby bind the lawyer? Yes. Remember that a matter remains privileged only so long as the client intends for it to remain privileged. Once the client has disclosed the privileged matter outside the circle of privilege – as, for example, when a sister tells her brother everything that she talked to her attorney about – the matter is no longer privileged.

I am, of course, not your lawyer, and these are generalized statements of the law that may not be in effect in your jurisdiction.

@astro

Wouldn’t a video tape or DVD of her reading the will in full command of her faculties put the lie to any potential claims of diminished capacity?

No. It would be some evidence, but it wouldn’t necessarily be definitive.

[A.R.Cane]

IANAL and this is obviously anecdotal. I’ve had two atty.'s, from different states, tell me that I should specifically include language to indicate that I am deliberately omitting persons that might otherwise be considered logical heirs.

[Campion]

@A.R. Cane

IANAL and this is obviously anecdotal. I’ve had two atty.'s, from different states, tell me that I should specifically include language to indicate that I am deliberately omitting persons that might otherwise be considered logical heirs.

Behold: the pretermitted heir.

[Bricker]

@Campion

Behold: the pretermitted heir.

My wife and I were discussing this issue recently. Mrs. Bricker was a lawyer in the Dominican Republic, and in the wake of her father’s recent death, we were discussing how testamentary intentions are interpreted here - a common-law jurisdiction, for the most part–and there, a civil law jurisdiction. As your link indicates, the civil law world tends to lock in a certain share for heirs, with no real way to defeat that claim. The US, with its common-law heritage, tends to permit explicit disinheritance.

[A.R.Cane]

@Campion

Behold: the pretermitted heir.

Thank you. I’m pleased to now know where that originates.

[Boyo_Jim]

Thank you all. I think this tells me as much as I’m going to find out here.

[Lissa]

@A.R. Cane

IANAL and this is obviously anecdotal. I’ve had two atty.'s, from different states, tell me that I should specifically include language to indicate that I am deliberately omitting persons that might otherwise be considered logical heirs.

My grandfather is so paranoid about this possibility that he has made bequests of one dollar to anyone he specifically doesn’t want getting a share of his estate. He supposedly also has a clause (and I don’t know the wording or even if it’s enforcable) that if someone challenges the will and wins, the estate is to be given to charity.

[LSLGuy]

IANA lawyer, but …

My atty put a clause in my will which states that anyone who challenges the will will forfeit any bequest they may have otherwise been entitled to. The wording is such that even persons not named in the will, such as pretermitted heirs, are included in the “you fight, you lose” group.

I’m not sure how effective this clause would be since a challenge could also challenge that clause, and, if sucessful, invalidate it.

But it does change the rules of the game. Absent that clause, someone challenging the will has nothing to lose but their attorney’s fees. With the clause they stand to lose that plus their entire share. Winning through deterence is almost always better than winning through combat.

[Gfactor]

@LSLGuy

My atty put a clause in my will which states that anyone who challenges the will will forfeit any bequest they may have otherwise been entitled to.

It’s called a no-contest clause. Enforceaability varies by state. http://www.stimmel-law.com/articles/No_Contest_Clauses_Will_Effects_On_Will_Contests.html
http://courts.co.calhoun.mi.us/quest514.htm