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Lawyer ordered to give will to prospective trustee

|Written By Julius Melnitzer

A recent decision by Ontario Superior Court Justice David Brown in Hope v. Martin provides useful guidance on how lawyers who are in possession of an original will ought to deal with questions of solicitor-client privilege and the duty of confidentiality.

The case arose after Alexandra Bion died in March 2011. She had executed a will in which she appointed her daughter, Christian Dingman, and her lawyer, William Martin, to act as executors. Martin prepared the will and had it in his possession.

Both Dingman and Martin renounced their executorship after Bion’s death. Bion’s stepdaughter Julie Hope, also named as a beneficiary, was prepared to apply for appointment as estate trustee.

Hope required the original will to apply for probate and retained Ameena Sultan of Toronto’s Whaley Estate Litigation to represent her. Sultan requested the original will from Martin but, citing confidentiality and solicitor-client privilege, he insisted that she obtain a court order.

Counsel for Dingman then sent Martin a direction authorizing the release of the will to Sultan for probate purposes. Martin replied that Dingman had no authority to direct him as she had resigned from her position as executor.

“I am writing in my capacity as the solicitor for Alexandra Bruce Bion,” Martin stated in his letter. “My understanding of the law is that I can provide the will only to the estate trustee. This is based on confidentiality and the rules of the law society.”

Martin also asked Dingman’s lawyer to provide him with support for his position and made a point of stating that he was “not attempting to be difficult.”

The lawyer countered that the fact that all of those with a financial interest in the will had asked that it be turned over to Sultan was sufficient authority to do so. He also cited Stewart v. Walker for the proposition that no privilege be attached to the will.

Martin reiterated his position that he could only deliver the will to someone who had authority to so direct him. In his view, that meant the two executors named in the will, and as both had resigned, there was “no one who has that authority.”

He would retain the will pending a court order and added that this “should not prevent the intended administrator from bringing the application to the court.”

Sultan then wrote to Martin to advise that all of the beneficiaries had agreed to Hope’s appointment. She noted she could provide consents from all of them supporting Hope’s appointment.

Martin stood fast in his insistence that only the executors could request the will but noted he wouldn’t oppose an application to produce it.

True to his word, Martin did consent to such an application. The matter then came before Brown, who felt compelled to “offer a few comments on how the parties might have avoided the cost and delay associated with this motion.”

In Brown’s view, there was no need to put Hope in the position of bringing the motion before him.

Contrary to the view expressed by Martin, Brown noted that the Rules of Civil Procedure required the original will to accompany an application for appointment of an estate trustee and the privilege issue ought not to have stood in the way of that.

“In my view, the issue of privilege does not even arise because, as noted by the Supreme Court of Canada in the Goodman estate case, where the interests of the party seeking the information are the same as those of the ‘client’ who retained the solicitor in the first place, privilege does not come into play,” Brown wrote.

Here, where Hope was seeking to further the interests of the deceased by administering her will, there was no basis for Martin to assert solicitor-client privilege against her.

“So, too, in respect of the solicitor’s duty of confidentiality to his client under the Rules of Professional Conduct,” Brown added. “As the commentary to Rule 2.03(1) observes, ‘In some situations, the authority of the client to disclose may be implied.’

Where a deceased made a will, it follows that the deceased intended the will to be acted on and thereby authorized his or her solicitor to disclose the will to the appropriate person so that intention could be fulfilled.”

The real issue, then, was whether the person requesting the will had the authority to do so.

“The appropriate response will depend upon the particular circumstances of the case and the application of practical judgment and common sense,” Brown wrote. “Where a named executor makes the demand, production should be made.

Where a solicitor is faced with conflicting demands, he can legitimately require the conflicting parties to obtain a court order.

However, where, as here, the solicitor knew that both executors had renounced and there was no evidence of conflicting demands to assume the administration of the estate, the solicitor should have exercised some practical judgment to ensure that the testatrix’s intentions were performed without imposing unnecessary costs on the estate.”

The upshot, according to Brown, was that a solicitor should insist on a court order only where there was a reasonable basis to question the authority of the person making the demand. In his view, no such basis existed here.

Sultan, however, says the situation is a unique one. “I don’t fault Mr. Martin,” she says. “We took a position that we thought made good sense and he wasn’t comfortable with that.

But at least we now have a decision that gives some helpful guidance to the bar in these situations.

Martin didn’t respond to Law Times’ request for comment.

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