Production of Solicitor’s Files to Personal Representatives Part 2
Questioning Solicitor-Client Privilege in BC Courts & Canadian Law
In Part 1 of this blog post, we began to review the decision of Stapleton v. Doe, 2017 BCSC 12 which is a recent decision of Master Wilson considering the application by a personal representative to compel production of a solicitor’s file. A brief summary of the facts is as follows:
The Deceased has purchased an insurance policy for a premium of $100,000 approximately 4 months before his death. Two months before his death, he changed the beneficiary designation from the Plaintiff in this case (his personal representative and only child) to a party or parties unknown. The Plaintiff commenced an action claiming that the Deceased did not have capacity to make the change or in the alternative that the unknown beneficiaries held the proceeds of the policy in trust for the Estate.
Solicitor-Client Privilege Waived
Part 1 of the blog considered the “Wills Exception”; however, in this decision Master Wilson chose to order production of the file based on a different reason and reviewed a recent British Columbia decision addressing 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.
Related BC Wills, Estate Planning & Litigation Posts
- Reasons for Fighting A Will: Looking Beyond the Will Itself
- BC Supreme Court Declines Validity of Unsigned Draft Will
- Summary Trials in BC Wills Variation Cases
- BC Estate Litigation: Hearing “Hearsay” Evidence