Solicitor Ordered to Produce Original Will

It’s common knowledge amongst estate lawyers that an original will is ordinarily required when an estate trustee applies for probate.  In the rare circumstance, the Rules of Civil Procedure do provide for an Order permitting the use of a copy of the Will where the original will has been lost.

In a recent Ontario Superior Court of Justice decision, the Honourable Justice Brown, considered the situation where the solicitor who drafted the testator’s will was asserting solicitor-client privilege regarding the production of the original Will.

In Hope v. Martin, the estate trustees named in the Deceased’s will renounced their right to apply for probate.  One of the named estate trustees was the Solicitor who drafted the deceased’s Will (the “Drafting Solicitor”) and still held possession of the Deceased’s original Will.  As both estate trustees had renounced their right to apply for probate, a beneficiary of the Estate agreed to apply.  Counsel for the beneficiary wrote to the Drafting Solicitor requesting production of the original Will so that her client could apply for probate.  The Drafting Solicitor refused to produce the Will asserting solicitor-client privilege.  The Drafting Solicitor argued that he could only release the Will to a person who had authority to direct him to do so and he took the position that the only two people who have authority to do so are the two estate trustees; however both had renounced.  Counsel for the beneficiary/applicant obtained consents from all of the beneficiaries of the Estate, indicating that they did not oppose the appointment of the beneficiary/applicant to apply for probate; however, the Drafting Solicitor demanded that a court order be obtained before he produced the Deceased’s original Will.

In his decision, the Honourable Justice Brown referred to the case in Stewart v. Walker, a case involving the contested probate of a copy of a will, where the Court of Appeal held:

The privilege is not the privilege of the solicitor, but of the client who may waive it or not as he pleases … The reason on which the rule is founded is the safeguarding of the interests of the client, or those claiming under him when they are in conflict with the claims of third persons not claiming, or assuming to claim, under him. And that is not this case, where the question is as to what testamentary dispositions, if any, were made by the client.

In his analysis, the Honourable Justice Brown went further then Stewart v. Walker and cited a Supreme Court of Canada decision, in Goodman Estate v. Geffen, where the court held:

The general policy which supports privileging such communications is not violated. The interests of the now deceased client are furthered in the sense that the purpose of allowing the evidence to be admitted is precisely to ascertain what her true intentions were.

The order went on consent and Justice Brown ordered the production of the original Will to the beneficiary/applicant.  

The real issue facing solicitors who are asked to produce the original of a will is whether the person making the request possesses the authority to do so and the appropriate response will depend upon the particular circumstances of the case.   In his view Justice Brown stated “a solicitor should only insist on the securing of a court order for the production of the original will where some reasonable basis exists to question the authority of the person making the demand for production.”

Thank you for reading and until Wednesday,

Rick Bickhram