Solicitor-Client Privilege And The Wills Exception

Solicitor-client privilege is a "fundamental civil and legal right"1 which ensures that communications between lawyer and client are strictly confidential. Neither the lawyer nor the client can be compelled to disclose communications that are protected by solicitor-client privilege. The client owns the privilege and, therefore, only the client is permitted to voluntarily disclose privileged information.

The purpose of solicitor-client privilege is to facilitate full and frank disclosure by the client to the lawyer, which is necessary for the lawyer to provide the best-possible legal advice. As Brougham L.C. stated over 150 years ago, "[i]f the privilege did not exist at all, everyone would be thrown upon his own legal resources; deprived of all professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case"2.

Solicitor-client privilege is permanent, surviving the death of the client (and the lawyer, for that matter), which has an obvious implication in the wills and estates context. Even after the will-maker has passed away, the solicitor-client privileged information is maintained in confidence. However, notwithstanding the sanctity of solicitor-client privilege, a significant exception has emerged in the wills and estates context: the "wills exception", which applies where the validity of the deceased's will is challenged.

This article discusses the wills exception and recent attempts to expand the exception to the wills variation context, where the issue is not the legal validity of the will itself, but rather the will-maker's decisions with respect to the distribution of his or her estate.

Wills Exception

In many estate litigation cases, a party seeks to set aside the will by alleging that the will-maker did not have the requisite capacity to make the will or was unduly influenced to make the will. If such an argument is successful, the estate will be distributed according to the deceased's last valid will or, if there is no will, in accordance with the intestacy provisions of the Wills, Estates and Succession Act.

The Court must rely on the relevant evidence to decide the case. The documents and testimony of the solicitor who drafted the will would obviously be relevant evidence that would greatly assist in determining the will-maker's true intentions and capacity in executing the will.3 However, such evidence is generally prohibited by solicitor-client...