The Testamentary Exception to the Attorney-Client Privilege: Defining the Parameters
Mar 1, 2003
By Constance Tromble Eyster1
The Colorado Supreme Court has recently held that the attorney-client privilege2 survives the death of a client. Wesp v. Everson, 33 P.3d 191, 200 (Colo. 2001). Colorado, like most jurisdictions, recognizes exceptions to this general rule. Id.3 One such exception is the "testamentary exception," which permits an attorney who drafted a deceased client's will to disclose attorney-client communications concerning the will and transactions leading to its execution in a suit between the testator's heirs, devisees, or other parties who claim by succession from the testator. Id. at 200.4 This article discusses Colorado law applying the testamentary exception and discusses how other jurisdictions have defined the parameters of such exception.
The testamentary exception was recognized by the United States Supreme Court in the case of Glover v. Patten, 165 U.S. 394, 407-408 (1897), where the Court reasoned that in a dispute between devisees the decedent would want confidential attorney-client communications disclosed to prove the decedent's donative intent. The Court stated that the testator's intent, "could have been no clearer if the client had expressly enjoined it upon the attorney to give this testimony whenever the truth of his testamentary declaration should be challenged by any of those to whom it related." Id. at 408. The Supreme Court reaffirmed this principle in the case of Swindler & Berlin v. United States, 524 U.S. 399, 404-405 (1998), and stated that about half the states have codified the testamentary exception by providing that a personal representative of the decedent may waive the privilege when heirs or devisees claim through the deceased. Swindler & Berlin, 524 U.S. at 405 n.2.
Colorado has not codified the testamentary exception, however the exception has been recognized in this State as early as 1905 in the case of Estate of Shapter, 35 Colo. 578, 85 P. 688 (1905). In that case, a will was presented for probate and several heirs objected, alleging that the testator lacked capacity to execute the will. Over the objection of the decedent's heirs, the trial court permitted the attorney who drafted the will to testify as to the circumstances surrounding the will execution. The court stated that, undoubtedly, while the testator lives, the attorney drawing his will is not permitted, without the consent of the testator, to testify to communications made to the attorney concerning the will or its contents. Estate of Shapter, 35 Colo. at 587, 85 P. at 691. After the testator's death, however, as a matter of public policy, the court saw "no reason why . . . the attorney should not be allowed to testify as to directions given to him by the testator so that it may appear whether the instrument presented for probate is or is not the will of the alleged testator." Id. (Emphasis added).5
The Colorado Supreme Court upheld this rule in Denver National Bank v. McLagan, 133 Colo. 487, 298 P.2d 386 (1956). The attorney who prepared the decedent's will in that case was permitted to testify to the circumstances surrounding the execution of the will and to statements made by the deceased at that time. Denver Nat'l Bank, 133 Colo. at 491, 298 P.2d at 388. Potentially broadening the application of the rule to more than just the "directions given" to the attorney, the court stated that "Numerous decisions . . . hold that an attorney who draws a will is a competent witness, after the death of the testator, to testify to all matters leading up to the execution of the will including statements of the testator [and] his mental condition, and to facts relating to the issue of undue influence and other matters affecting the validity of the will." Id. (Emphasis added). Thus, it appears from the holding in Denver National Bank, that not only client communications, but also the mental condition of the client and other circumstances regarding the will execution may be disclosed by the drafting attorney after the client's death in a suit between heirs or devisees.
Although the Colorado Supreme Court ultimately held in Wesp v. Everson that the testamentary exception did not apply in that case (because the attorney-client communication did not involve a will and the subject litigation was not a will contest), the court did state the general principle that the testamentary exception applies in suits between heirs, devisees, or other parties who claim by succession from the testator. 33 P.3d at 200. Other courts have described such suits as disputes between parties claiming under the estate. See Glover, 165 U.S. at 406. Whether a party "claims under an estate" has been phrased in terms of whether a party is in "privity with" or is a "stranger to" the estate. Wills and the Attorney-Client Privilege, 14 GA. L. REV. 325, 334 (1980); 2 MCCORMICK ON EVIDENCE § 94 (4th ed. 1992). Claims by creditors or other persons asserting an adverse contract or tort claim against an estate have been held to be claims by a stranger, and thus the testamentary exception has been held not to apply. See 2 Paul R. Rice, ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES 294-295 (2nd ed. 1999); 2 Edward J. Imwinkelried, THE NEW WIGMORE: A TREATISE ON EVIDENCE 955 (2002). Parties have also been held to be strangers to the estate where such parties are not heirs or devisees of the decedent and merely allege an interest in the estate based on a will contract claim, although courts have also held to the contrary. See In re Smith's Estate, 57 N.W.2d 727, 730 (Wis. 1953); 2 MCCORMICK ON EVIDENCE § 94 n.11 (4th ed. 1992).
Persons claiming a statutory share have been considered to be claiming under the estate. 2 Paul R. Rice, ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES 295 (2nd ed. 1999). Additionally, the current view is that the testamentary exception is available when someone is claiming an interest in the estate as a result of a purported inter vivos transaction. See 2 Edward J. Imwinkelried, THE NEW WIGMORE: A TREATISE ON EVIDENCE 955 (2002); Restatement (Third) of the Law Governing Lawyers § 81 (2000).
If the testamentary exception applies, the Colorado Supreme Court has suggested that all matters leading up to the execution of the will including statements of the testator, his mental condition, and the facts relating to the issue of undue influence and other matters affecting the validity of the will are discoverable. Denver Nat'l Bank, 133 Colo. at 491, 298 P.2d at 388. Such a broad description of discoverable material may include copies of prior executed wills or even drafts of unexecuted wills in certain circumstances.
Where a party who was not related to the decedent sought discovery of prior, unsigned wills, the Indiana Court of Appeals has held that such documents were protected by the attorney-client privilege. In re Estate of Voelker, 396 N.E.2d 398 (Ind. Ct. App. 1979). The court in Estate of Voelker relied both upon the fact that the claimant was a stranger to the estate and on the fact that "metamorphosis from mere pages of writing to the status of a will was never achieved" and therefore there was no implication that the client intended to waive an otherwise privileged communication. Id. at 399. This reasoning was also applied in the case of De Loach v. Myers, 109 S.E.2d 777 (Ga. 1959), where the Georgia Supreme Court held that the attorney-client privilege applied, and was not waived, with regard to a will prepared by an attorney that was never executed, read to, or seen by the testator. Id. at 781. The Georgia Supreme Court reasoned that the purposes for the testamentary exception, which are to disclose declarations and transactions which promote a proper fulfillment of a decedent's will, were not present in these circumstances. Id. (relying also, in part, on the fact that the claimant was a stranger to the estate).
Similarly, where claimants objected to a will based upon the theory that the decedent was bound by a will contract, the Wisconsin Supreme Court held that an attorney was not required to produce or testify to the contents of prior wills and codicils executed by the decedent. In re Smith's Estate, 57 N.W.2d 727, 730 (Wis. 1953). The court reasoned that because the claimants were not claiming as legatees or as heirs of the decedent, they were strangers to the estate. In so holding, the court discussed its earlier decision, In re Landauer's Estate, 52 N.W.2d 890 (Wis. 1952), where the court held that prior wills in the possession of the drafting attorney were discoverable. The difference between the two cases was that in Landauer's Estate, the decedent's last will was alleged to have been the product of undue influence. In re Smith's Estate, 57 N.W.2d at 730. In such circumstances, the court reasoned that it cannot be assumed that the purported last will in fact reflected the testator's true intention. Rather, the testator's interest "would best be served if the attorney . . . would be permitted to divulge all communications, including the contents of prior wills in his possession, which were relevant and material as to the question of the validity of such will." Id.
The United States Court of Appeals for the District of Columbia has also found that in instances where the claimants allege that the decedent's last will was the product of undue influence, that prior wills held by the drafting attorney must be disclosed even though the decedent himself destroyed all executed originals of prior wills. In Doherty v. Fairall, 413 F.2d 381, 382 (D.C. Cir. 1969), the court stated that "We recognize that in some circumstances valid reasons exist for keeping a revoked ‘will' private but these considerations must yield to the needs of a situation such as exists here. . . . Subsequent destruction of the executed draft evidences an intent to render the will invalid, but the purposes for which the copy is now sought does not depend on its present legal efficacy." Id. at 382-83.
Courts have also found that prior wills are discoverable when the decedent requests that the drafting attorney sign the will as a witness to its execution, on the theory that, by making such a request, the decedent waived the attorney-client privilege. In re Landauer's Estate, 52 N.W.2d at 892. There is some support for this form of waiver in Colorado. The trial court in the case of Denver National Bank ruled that since the drafting attorney signed the will as a witness to the due execution, at the request of the decedent, that there was a waiver of otherwise privileged attorney-client communications. Denver Nat'l Bank, 133 Colo. at 491, 298 P.2d at 388. The Colorado Supreme Court upheld the trial court's ruling, although that court did not expressly rely upon or reject the trial court's reasoning. See id.
Even if the testamentary exception to the attorney-client privilege does not apply to prior wills or drafts of wills, an attorney may still need to disclose such information if the decedent revealed the contents of such documents to the person claiming under the estate. The Supreme Court of New Hampshire has held that "If it is found that [the claimant] was present with the testator and in a position to learn the contents of this will or of the communications between him and the attorney relating thereto, these documents, to that extent only, would not be privileged and the Trial Court could order their production." Scott v. Grinnell, 161 A.2d 179, 184 (N.H. 1960).
If uncertain as to whether disclosure of information regarding a decedent's estate planning would violate the attorney-client privilege, it may be advisable for an attorney to wait to disclose such information until ordered by a court to do so. In Iowa, the Board of Professional Ethics and Conduct has issued several advisory opinions stating that documentation of a client's written and verbal communications regarding a decedent's will should be disclosed only if the court issues an order to that effect. Iowa Eth. Op. 88-11 (1988); Iowa Eth. Op. 91-25 (1991). Ethics opinions issued by the Philadelphia Bar Association's Professional Guidance Committee have also provided that an attorney is prohibited from disclosing the contents of an earlier will to the heirs of the decedent in the absence of express authorization by the client or in the absence of a court order. Phila. Bar Op. 91-4 (1991).
In sum, although Colorado recognizes the testamentary exception, there has not been significant case law in Colorado defining its parameters. Attorneys should be aware that if a will contest occurs between parties claiming under a decedent's estate, the attorney who drafted the decedent's last will, and in some circumstances the attorney who drafted prior wills for the decedent, may be required to disclose communications concerning such will and transactions leading to its execution. Furthermore, an attorney may be more likely to be required to disclose communications concerning will executions if the attorney signed the will as a witness. Finally, express authorization from a court or a court order may be preferable before an attorney discloses any information regarding a client's will or the circumstances leading to its execution.
1. Constance Tromble Eyster is an associate at Hutchinson Black and Cook, LLC, where she specializes in estate planning and probate law. She received an A.B. from Dartmouth College and her J.D. from the University of Colorado at Boulder. She is co-chair of the Tax, Estate Planning, and Probate Section of the Boulder County Bar Association and she is active in several committees of the Trust and Estate Section of the CBA.
2. See C.R.S. 13-90-107(1)(b); Colorado Rules of Professional Conduct 1.6.
3. For a detailed discussion on the waiver of the attorney client privilege as a result of communications with third parties see D. Edward Brown, Annette C. Wilson, Attorney-Client Privilege and Duty of Confidentiality: Distinction and Application, 31 COLO. LAW. No. 1, p. 97 (2002).
4. This article does not discuss whether an attorney, who is permitted to testify regarding a decedent's will, would be a competent witness under C.R.S. § 13-90-102, which is commonly known as the Dead Man's Statute. However, it is noteworthy that the Dead Man's Statute was repealed and reenacted in 2002, and now currently states that a party or a person in interest with a party will be permitted to testify regarding an oral statement made by the decedent if (a) the statement was made under oath, (b) the statement is corroborated by material evidence of a trustworthy nature, or (c) the opposing party introduces evidence of related communications. Accordingly, the statute would only apply to the testimony of an attorney if the attorney is either a party or a person in interest with a party, which is defined as a person having an interest in the outcome of the civil action or having an interest that standing alone, renders the person's testimony untrustworthy. See H. Tucker, M. Darling, & J. Hill, The New Colorado Dead Man's Statute, 31 COLO. LAW. No. 7, p. 119 (2002) (discussing the new statute).
5. Although directions regarding a will fall within the testamentary exception to the attorney-client privilege, merely writing a deed does not. However, neither does the mere drafting of a deed constitute a communication that is protected by the attorney-client privilege. Caldwell v. Davis, 10 Colo. 481, 492, 15 P. 696, 701 (1887).