In this probate proceeding, respondents Mr. AX and Mrs. AXW move to compel the co-executors of the estate, Mrs. JA, the surviving spouse of decedent, and Mr. K, accountant of decedent, to reproduce: (1) the original and/or photocopies of prior wills of the decedent; (2) un-redacted photocopies of two letters between decedent and the attorney/draftsman, Mr. JM, Esq., and; (3) un-redacted photocopies of notes taken by Mr. JM during two separate in-person meetings with the decedent. For the reasons set forth below, an in camera review of said materials, in un-redacted form, is necessary.
In opposition to respondents’ motion, the executors allege they are unable to locate any prior wills and will provide such in the event that they are located. In response to the redactions, the executors contend that Mr. JM represented both decedent and decedent’s surviving spouse, Mrs. JA, in connection with their estate plan, and had confidential communications with decedent and Mrs. JA, jointly and individually, concerning Mrs. JA’s estate plan and assets, and that the contents of those communications concerning Mrs. JA’s estate plan and assets are the subject of the redacted material and are, therefore, privileged, pursuant to the attorney-client privilege afforded by CPLR 4503, and not discoverable by third parties.
In actions involving the probate, validity or construction of a will, an attorney or his employee is required to disclose information as to the preparation, execution or revocation of any will or other relevant instrument, but he shall not be allowed to disclose any communication privileged under subdivision (a) which would tend to disgrace the memory of the decedent. Respondents contend in their motion that these documents are not privileged as they contain information pertaining to the decedent and his will that the executors are required to disclose.