Production of Solicitor’s Files to Personal Representatives Part 1

Professional Regulation

Wills Exception to Solicitor-Client Privilege in BC Courts & Canadian Law

Solicitor-Client privilege is a crucial and bedrock aspect of the law in Canada and much of the world. However, even when a client has died and there is litigation with respect to their Estate, solicitors may be reluctant to produce their former client’s file. In the recent decision of Stapleton v. Doe, 2017 BCSC 12, Master Wilson considered an application by a personal representative to compel production of a solicitor’s file. This blog will highlight this decision and the two aspects of production that were considered by the Court.

In this case, 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.

The “Wills Exception” Argument

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”. In the published reasons, Master Wilson stated the following:

[13] The plaintiff says that the solicitor’s file ought to be produced because the privilege that formerly belonged to Mr. Haas passes to the personal representative such that the plaintiff is entitled to waive it; in the alternative, the plaintiff says it should be produced notwithstanding there is no waiver of privilege pursuant to a line of authorities referred to as the “wills exception”.

[14] As to the former argument, the plaintiff relies on s. 142(1) of the Wills, Estates and Succession Act, which states as follows:

142(1) A personal representative has the same authority over the estate in respect of which the personal representative is appointed as the deceased person would have if living, subject to

(a) a contrary intention appearing in the will of the deceased person, and

(b) this or any other enactment.

[15] The “wills exception” cases are those where the solicitor who took instructions and drafted the will was 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. The plaintiff refers to authorities where the wills exception has been expanded to include analogous transactions such as the creation of a trust (Geffen v. Goodman Estate, 1991 CanLII 69 (SCC), [1991] 2 SCR 353), and production of an estate planning file where the deceased had transferred two pieces of property prior to his death (Kreeft v. Kreeft Estate, September 18, 2006, Kelowna Registry No. S64537). Courts have drawn a distinction between those cases where production of a solicitor’s file is sought to aid in the determination of the validity or interpretation of the will on one hand and an attempt to attack or vary the will where the intentions are clear and manifest on the face of the will on the other.

We will continue our review of this case in our next blog post.

Related BC Wills, Estate Planning & Litigation Posts

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