VANCOUVER, BC—(Marketwired – May 30, 2017) – As litigation lawyers, the team at Kushner Law Group knows that solicitor/client privilege is a foundational element of the law. Even when a client dies, and there is litigation in respect to their Estate, solicitors may be reluctant to produce client files. However, under certain circumstances, they may be compelled to comply. For more, go to: http://kushnerlaw.ca/wills–exception–to–solicitor–client–privilege–in–bc–courts–canadian–law/
A two–part blog recently published by the Kushner Law Group delves into the case of Stapleton v. Doe, 2017 BCSC 12, where Master Wilson considered an application to compel the production of a solicitor's file.
Part one of the blog introduced the case of Stapleton v. Doe, 2017 BCSC 12, in which two arguments were advanced in regards to a case, where the deceased had changed the beneficiary designation for a $100,000 insurance policy from his only child to an unknown party only two months before his death.
The first argument advanced by the Plaintiff with respect to the production of the file was based on a concept known as the “Wills Exception,” which basically says that a solicitor who took instructions and drafted the will is required to give evidence regarding communications and instructions between solicitor and client where the execution, contents, or validity of the will were in issue, despite there being no waiver of privilege.
However, Master Wilson chose to have the file produced for a different reason, and cited a recent decision that addressed the rights of a personal representative to waive privilege.
 A British Columbia case that addressed the rights of a personal representative to waive privilege is Romans Estate v. Tassone, 2009 BCSC 194 (CanLII), which involved the estate of an elderly man who shortly before his death transferred two assets to a friend and named his much younger caregiver as the executor and sole beneficiary in his will. The executor commenced an action against the deceased's friend to set aside the conveyances and an applied for production of the conveyancing solicitor's files. The named executor had not been granted probate as at the date of the application and her entitlement to probate was in dispute. The deceased's former solicitor asserted privilege over the conveyance files. Savage J. held that the solicitor had properly refused to disclose the files and that it was appropriate that the executor prove her authority by producing letters of probate first. At para. 40, Savage J. held the following:
40. The authorities in my view make several matters clear: (1) an action can be commenced without obtaining probate, as an executor's authority is based on the will, (2) before proceeding with an action already commenced, the parties to an action may require that the Plaintiff prove their authority by producing letters probate, (3) the court may require that a Plaintiff prove their authority, by producing letters probate, of its own motion, when appropriate and (4) the court may order a stay of proceedings any time after the commencement of an action where it is in the interests of justice to do so, pending the issuance of letters probate.
 While the question does not appear to have been a matter of dispute, Savage J. at para. 41, confirmed that the solicitor–client privilege vests in the personal representative:
41. In the instant case, as the production of the Solicitors file would compromise a substantive right of the deceased, that of solicitor–client privilege, and such right ensures to the personal representative of the testator, the Solicitor was correct to call upon the Plaintiff to produce letters probate proving her authority to act on behalf of the estate at this juncture.
 The only reason the solicitor's file was not ordered produced in the case was that the named executor had not yet proven her authority. Presumably the personal representative, once conclusively determined, would be entitled to waive the privilege. In this case, the plaintiff has already been granted letters probate and her authority as personal representative is uncontroverted.
It's easy to see that wills and estate planning can be incredibly intricate and complicated. If you're involved in litigation, the right advice and guidance are imperative. Contact the Kushner Law Group to schedule a consultation at 604–629–0432 or online.
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