(Published in the Trial Bar News, March 2011)
Q: The children of your deceased client are in litigation over the Will and Trust you prepared. They demand copies of your file, including your notes and confidential letters to the client. Must you produce them?
A: You must produce the file. There is, in fact, no attorney-client privilege for estate planning communication and other documents in the context of a dispute among the heirs. According to Rule 502(d)(2) of the Rules of Evidence:
“There is no `attorney-client` privilege under this rule:…`a`s 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.”
Thus, if the contents of your file are relevant to an issue in a dispute among the legatees, beneficiaries, or heirs, they are discoverable. The Rule is consistent with prior law. See Stevens v. Thurston, 112 N.H. 118, 119 (1972).
Not only is your file subject to production, you are subject to examination at deposition and trial about all relevant aspects of your dealings with the decedent. In most cases, the estate plan will be challenged on grounds that the decedent lacked capacity or was under the undue influence of some other person, usually a child. Your examination will likely focus on: the history of your relationship with the decedent; the length, number, and content of your meetings with the decedent; the presence or absences of other family members at the meetings; and your observations about the clarity of the decedent’s thinking.
Most important, your examination will address whether the decedent evidenced the knowledge necessary for testamentary capacity, that is, an understanding of: one’s relatives and the roles they play in one’s life; the nature and extent of one’s wealth; and the dispositional scheme of the estate plan. In re Estate of Washburn, 141 N.H. 658, 661 (1997); Boardman v. Woodman, 47 N.H. 120, 122 (1866). This evidence will be important if the estate plan is being challenged on grounds of undue influence as well as incapacity. Generally, only a person of impaired mentation, even if capacitated, is susceptible to undue influence.
Your testimony and the documents in your file may well determine whether the estate plan is upheld or set aside. The burden of proof is on the proponent of the Will. In re Estate of Washburn, 141 N.H. 658, 659 (1997). If you are unable to testify convincingly that the testator was capacitated, the Will may fail. Because estate plans are often challenged years after they were prepared and at a time when the memories of counsel and the subscribing witnesses have faded, careful, thorough notes of the estate planning conferences, particularly the client’s expressions evidencing capacity, can be highly important.