Will Contest Discovery: Hand Over the Scrivener’s File

In a will contest matter, the main focus is always the Decedent’s intent.  For example, did the Decedent actually intend to sign a will leaving everything to one child while excluding all others? Did the will result from undue influence exerted upon the Decedent by the child who received the entire estate?

A Good Lawyer Documents Everything

To get to the bottom of things in will contests, the parties engage in discovery to investigate the circumstances surrounding the will’s preparation and execution.  In cases involving a will prepared by a lawyer, that lawyer is the one person who should surely know what the Decedent intended.   If that lawyer is a good lawyer, his or her file should contain notes regarding discussions and meetings with the client about the terms of the will.  Indeed, when a testator “cuts out” one or more family members in favor of others, a good estate planning lawyer will know that a will contest may likely arise when the testator dies and will typically insert notes in the file, confirming that he or she explained this likelihood to the testator and documenting the testator’s stated reasons for the disparate treatment.  A good estate planning attorney should also write a letter to the client, documenting the client’s decision to treat family members (or anyone else who might reasonably have been expecting to receive a bequest under the will) disparately.  The lawyer’s file will typically contain other helpful information as well, such as various drafts of a will, which may show a progression of changes from the initial meeting through execution, or changes from a prior will to the “last” will.

Does the Attorney-Client Privilege Apply in Will Contests?

Given the bounty of information a proper will file should contain, lawyers involved in a will contest typically turn immediately to the lawyer who prepared the will (the “scrivener”) and ask that he or she produce the relevant file to counsel.  What about the attorney-client privilege, though?  Doesn’t the attorney-client privilege keep secret what clients have told their attorneys, even after the client has died?  How about the attorney work product doctrine, which generally protects materials or documents prepared by counsel on behalf of their clients?  In the world outside of will contests, those privileges do present substantial hurdles to anyone seeking to access a lawyer’s file.  In the context of a will contest action, however, that file must be produced.  A recent opinion by Judge Gilman of the Bucks County Court of Common Pleas, Orphans’ Court Division, explains why.

Cohen Estate, 3 Fid. Rep. 3d 145 (O.C.  Bucks)is a will contest action in which the contestants allege that the Decedent executed his will as the result of undue influence.   The Decedent in Cohen lived with his nephew between May 2006 and his death in June 2009.  At the time he moved in with his nephew, Decedent executed a power of attorney naming his nephew as agent, with full control and authority over his assets.  Prior to executing that power of attorney, Decedent had never executed any testamentary writings.  The record revealed that Decedent’s nephew contacted and retained a lawyer to prepare three separate wills for Decedent, all of which left a “substantial bulk” of Decedent’s estate to the nephew. The disappointed family members who received little or nothing under Decedent’s will as probated argued that the Court must invalidate the will. They alleged that the nephew (1) had a “confidential relationship” with his uncle, who (2) suffered from a “weakened intellect,” and that the nephew (3) received a “substantial benefit” under the will, thereby rendering it invalid as the product of undue influence.  (We will address those three prongs of Pennsylvania’s “undue influence” standard in future blog posts.)

During the litigation, the disappointed heirs subpoenaed the scrivener’s records, but the scrivener objected to producing the file, citing the attorney-client privilege and work product doctrine.  Judge Gilman overruled those objections and ordered the scrivener to produce the file to contestants’ counsel, emphasizing that the contents of the scrivener’s file are highly relevant to the issues presented by the will contest and noting that it might well contain notes about Decedent’s “mental condition, testamentary capacity, competence and independence of thought, intent and action.”

In support of its decision, the Court cited In Re: Thevaos Estate, 10 Pa. D.&.C. 5th 481 (O.C. Centre, 2010), which held that applying a  testamentary exception to the attorney-client privilege is proper when the deceased client may have been unduly influenced.  The Thevaos Court found that discovery of the scrivener’s file may either eliminate or affirm any concern about undue influence, and that seeing the testamentary changes made by Decedent was relevant to establishing his intent and determining whether or not he could clearly communicate that intent.

Disclosure of the Scrivener’s File Can Be In A Deceased Client’s Best Interest

The Court also turned to the Supreme Court opinion Swidler & Berlin v. United States, 524 U.S. 399 (1998), which discussed the rationale for allowing a testamentary exception to the attorney-client privilege.  In Swidler, which did not involve a will contest but which contained a lengthy discussion of the attorney-client privilege and various exceptions to the privilege, the Supreme Court noted that in the context of a will contest action the disclosure of attorney-client communications would actually benefit the deceased client, because it would shed light on his specific intent in creating his will.  The Swidler Court also cited a case from 1897 in which it held that, in the context of the testamentary exception applicable to will contest actions, the attorney-client privilege could be impliedly waived in order to fulfill the client’s intent.  See Glover v. Patten, 165 U.S. 394, 406-408 (1897).

As a secondary argument against producing any portion of the scrivener’s file, the scrivener argued that the Orphans’ Court should, at a minimum, conduct an in camera review of the file (i.e., the Judge should read the entire file himself) before ordering that its contents be produced. Judge Gilman wisely rejected that argument and stated that an in camera review was both unnecessary and inefficient because the subject matter of the subpoena was so directly tied to the facts of the will contest cause of action.  In other words, the purpose of an in camera review (a remedy granted rather infrequently by any court) is to ensure that irrelevant and possibly prejudicial information is not disclosed unless a judge first reviews the materials for their relevance. Judge Gilman concluded that the estate planning file could not conceivably contain information irrelevant to litigation involving that very estate plan.  As such, Judge Gilman essentially suggested that a Court review of the file would be an utter waste of the Court’s time.

Counsel who practice regularly in will contest matters know that the scrivener’s file is “Exhibit A” in a will contest.  Not all scriveners, however, understand the law governing will contest actions, and they often reflexively invoke the attorney-client privilege or work product doctrine when asked to produce their files.  Cohen Estate will serve as a helpful guide to all practitioners and scriveners on this important issue.

Points to Take Away

–In preparing wills, lawyers should always advise clients who wish to “cut out” family members or other potential heirs that their will is more likely to be contested. Indeed, good estate planning lawyers counsel their clients strongly against such strident moves. My colleague Margaret E.W. Sager, Esquire says that she tells clients with such desires, “No matter what good you have done during your entire life, the only thing anyone will remember or talk about after you die is that you disinherited (your son, daughter, etc).”

–For clients who have been counseled but nonetheless wish to proceed with disparate treatment, lawyers should keep detailed notes and correspondence in that clients’ file documenting (1) the testator’s stated reasons for such treatment, (2) the fact that testator has been advised of the likelihood of a will contest, and (3) that testator wished to proceed regardless of that knowledge.

–Lawyers who do not keep copious notes on these will preparation discussions as well as different drafts of wills in their files should be prepared for harsh questions and cross-examination should a will contest arise.

–Neither the attorney-client privilege nor the attorney work product doctrine will prevent the disclosure of the estate planning file in the context of a will contest, in which Decedent’s intent is the paramount issue. Under the logic of “testmentary exception,” it is in the testator’s best interest for the Court and other relvant parties to review all evidence that could shed light on his or her intentions. If the Decedent was determined to “cut out” a family member,then the lawyer’s file should be full of information documenting that desire–evidence which the Decedent would want the litigants and Court to see.