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Court Discusses Attorney Client Privlege


A man and his wife consulted a lawyer to plan the disposition of their estates on the event of their demise. The man and his wife both executed individual wills based on the advice and opinion of the lawyer they both consulted.

When the man died, his will was submitted for probate. His wife was named as executor of his will. The other heirs named in the will were the man’s children. During the probate proceedings, the children of the man asked that the executrix, the wife of the testator, be compelled to submit copies of the notes and letters sent by the lawyer of the testator to the testator where he summarized the wishes of the testator regarding the disposition of his estate.

A New York Probate Lawyer said the children of the testator claim that the attorney’s notes and his letters to the testator will yield information regarding his true wishes as he communicated it to his lawyer; it will also inform the court regarding the state of mind of the testator and may show whether the testator had the necessary testamentary capacity.

The executrix opposed the motion of the children. The lawyer who drafted the will of the testator also refused to bring the copies of his letters and notes on the ground that these are all part of privileged communication between him and his client which is protected by law.

The only question before the Court is whether or not the lawyer and the executrix may be compelled to present to the court the letters and the notes.

The Court held that while it is true that communications between a lawyer and his client are privileged communication and are protected by law, in a probate proceeding, this privileged communication between an attorney and his client is not absolute. When a lawyer assists his client in executing a will, and the will which was executed by the testator is submitted for probate, the lawyer has to be willing to testify as to the due execution of the will and also be willing to testify as to the testamentary capacity of the testator.

The lawyer cannot refuse to testify or give information regarding the estate plans of the testator because he is the only person, aside from the witnesses, who is in any position to shed light as to the due execution of the will.

The Court also held that the lawyer cannot refuse to give the court his notes or letters to the testator on the ground that he is also the lawyer for the wife whose estate plans he also drew up. Queens Probate Lawyers said he claims that if he divulges the details of the estate plans of the testator, he may also divulge the details of the estate plans of the wife who is also his client and who consulted him at around the same time that the testator executed his will.

The Court notes that the photocopies of the notes and the letters of the lawyer show that these were addressed personally to the testator and its only subject is the estate plans of the testator individually. There is no mention of the details or contents of the estate plans of the wife in those notes or letters.

The Court also noted that the testator and his spouse did not executed mutual wills such that the contents of the will of the wife will be divulged unnecessarily. Also, Suffolk County Probate Lawyers said where two people consult a lawyer for their mutual benefit, neither of them can invoke the attorney-client privilege in litigations between them.

Are you contesting the probate of a will? Do you think that the lawyer who assisted the testator in executing his will has information that may help you discover his testamentary capacity or the due execution of the will? You need the advice and assistance of a King’s County Will Contest Lawyer. A King’s County Will Contest attorney will help you present facts and evidence to support your move to compel the lawyer to provide evidence on the testamentary capacity or on the due execution of the will. At Stephen Bilkis and Associates, their King’s County Will Contest lawyers are ready and willing to represent you. Call Stephen Bilkis and Associates today and ask to speak to any of their King’s County Will Contest attorneys at any of their offices in King’s County.

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