Executor Granted Disclosure of Legal Advice Given to Deceased Will-maker

Solicitor-client privilege is a legal principle that protects, or “privileges”, communications that involve the provision of legal advice between a lawyer and their client, and requires the lawyer to hold the content of those communications strictly confidential. Unless one of the narrow exceptions to the rule applies, only the  client has the right to divulge the information protected by the privilege; this flows, in the words of the Supreme Court of Canada, from the idea that our justice system depends on “full, free and frank communication between those who need legal advice, and those who are best able to provide it”.

Courts have repeatedly affirmed that the privilege is permanent, and persists even after the death of the client who owns it. This, however, raises an interesting legal question: what happens to the right to divulge the solicitor-client communications the privilege protects (this is known as “waiving” the privilege), when that client dies?

This is the issue the court was asked to determine in the 2017 BC case of Haas Estate v. Jane Doe. There, the plaintiff was both the executor of and the sole beneficiary under the deceased’s will. A year before before his death, the will-maker met with an insurance advisor and changed the designated beneficiary of his life insurance policy, from the plaintiff to an unknown beneficiary.  Then, two months before his death, the will-maker met with his solicitor on two occasions to discuss estate planning, and, possibly, the aforementioned beneficiary change.

The plaintiff, in her role as executor, had requested that the insurance company disclose the details of the beneficiary change, but only received a form with the new beneficiary’s name redacted. She then requested production of the deceased’s solicitor’s file, and was informed that it was protected by solicitor-client privilege. After this occurred, she commenced the current action, which alleged, among other things, that the deceased did not have legal capacity at the time of the beneficiary change, and that, as a result, the unknown beneficiary or beneficiaries held the proceeds of the life insurance policy in trust for the deceased’s estate.

During the litigation, she then brought a court application for production of the solicitor’s file, claiming that, as the personal representative (i.e., the executor) of the deceased, she had inherited the authority of the deceased to waive his privilege over the communications between him and his solicitor that were recorded in the file. She claimed this right under section 142 of the Wills Estates and Succession Act, which grants an executor “the same authority over the estate” as the deceased person would have if living.

The court agreed, finding that the plaintiff, as executor, had the right to waive the deceased’s privilege over the file. Moreover, the court also explicitly stated that this right of waiver was not limited to situations where the assets in dispute passed through the estate (since life insurance proceeds do not form part of a deceased’s estate).

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