In a recent Ontario court case, an estate trustee sought to examine the other party’s lawyer on potentially privileged information in his defence to an action brought against him by the testator’s son.
Mother and Son Were Estranged at Time of Her Death
The testator died in May 2015. She had one surviving child, a son, although they had been estranged for many years prior to her death.
The testator named an executor and sole residual beneficiary of her estate, who was not her son.
The testator had been pre-deceased by her parents, and her son’s grandparents. Their wills had provided the testator with an income during her lifetime, but on her death the residue of their estates was to be paid to her surviving child or children. In this case, that would have been her son.
Son Turns Over Money to Estate Trustee
Following his mother’s death, the son received $916,856 from his grandmother’s estate and $212,469 from his grandfather’s estate. The funds were paid to him in June 2015.
However, the son alleged that his mother’s estate trustee told him that the residue of his grandfather’s estate was payable to the testator’s estate, not to him.
As such, the son signed over to the estate trustee the $212,469 he had received. He asserted that when he did so he was unaware of his entitlement to the residue of his grandfather’s estate. He therefore sought to recover the money he paid to the trustee because it was based on a false representation or, alternatively, based upon “unjust enrichment”.
Estate Trustee Disputes Son’s Claims
The son initiated his claim against the estate trustee on February 28, 2018.
In response, the trustee advanced several defences, including the assertion that the Limitations Act and laches foreclosed the claims advanced by the son.
In support of his defence, he advanced a claim that the son had seen a copy of his late grandfather’s will, or at least knew of its terms, sometime before February 28, 2016.
Trustee Seeks to Examine Lawyer on Son’s Knowledge
Because the estate trustee wanted to claim that the son had in fact seen the contents of his grandfather’s will, he brought a motion to examine for discovery the son’s former lawyer and for production of documents from her former law firm.
The lawyer had represented the son in a family law case. There was evidence from the trustee’s spouse, and a former friend of the son, that the son had discussed estate and inheritance matters with the lawyer and that he had shown the lawyer some documents related to the subject.
At issue was whether solicitor/client privilege trumped the estate trustee’s ability to test the veracity of the son’s assertion on his examination for discovery that he did not learn of his entitlement under his grandfather’s will before February 28, 2016.
Court Looks at Privilege Issue
The court began by explaining that privileged communications are only to be disclosed in exceptional circumstances and communications between lawyers and clients are generally sacrosanct.
With regard to the fact that the trustee’s wife had accompanied the son to meetings with the lawyer, the court held that the son had not waived solicitor/client privilege by her presence.
Additionally, the court made no finding of an abuse of process or fraud exception to the general rule protecting communications between a solicitor and client, as claimed by the estate trustee.
Court Dismisses Estate Trustee’s Motion
Finally, the court questioned the fact that the estate trustee had not offered any explanation for not seeking the targeted information and documentation from the bank that had sent the money to the son in the first place. It noted that the bank would surely have documentation surrounding the son’s entitlement to the money. The court then stated:
“It seems to me that before encroaching on the sanctity of solicitor/client privilege the defendant ought to be obliged to pursue other avenues of inquiry. Expressed another way, it would not be “unfair” to require the moving party to proceed to trial without the discovery of [the lawyer] and her former law firm when the moving party has not first made a diligent effort to obtain the targeted information and documents from [the bank].”
The court further noted that such a conclusion was consistent with Rule 31.10
of the Rules of Civil Procedure,
which provides that an order for examination for discovery of a non-party under rule 31.10(1) “shall not be made unless the court is satisfied…the moving party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery…”.
While the court noted that the trustee was not “entitled” to examine the bank for discovery without an order under rule 31.10(1), it stated that his ability to obtain such an order was obvious. In addition, the court observed that the son could be asked or ordered to sign a direction and authorization that would enable the bank to provide copies of all letters, emails or notes in its possession regarding communications it had with him before February 28, 2016 concerning his late grandfather’s estate and the son’s entitlement to the $212,649 it paid to him in June 2015.
In the result, the court therefore ruled that the estate trustee’s motion was premature and it was dismissed.
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