Privilege in the Context of Contentious Estates

Richard Cleveland
Wills & Estates

In Kobzos v. Kobzos Estate, 2019 BCSC 2254, the will-maker died leaving four adult children. Under a will made in 2011 he left three of his children $50,000 bequests with the residue of the estate going to the fourth child. The 2011 Will revoked a will from 2004, which more or less provided that the estate was to be divided equally among the four children. At the time of his death, the deceased’s assets included real property in Delta, a savings account, a non-registered investment account, and a tax free savings account. On his death, these accounts passed to one of the deceased’s children, Shelley (as one was held in joint tenancy and she was named as beneficiary in the others) leaving the Delta property as the only asset of value remaining in the estate.

However, on the same day he made the 2011 Will, the deceased executed a Form A Freehold Transfer to transfer title to the Delta property into Shelley’s name. This document was retained by the deceased’s lawyer along with instructions to register it with the Land Title Office following his death. As a result, Shelley effectively received 100% of her father’s estate. One of the deceased’s three other children then commenced legal action against Shelley and the estate seeking, among other things, that the deceased’s lawyer produce documents relating to the deceased’s estate planning and to the transfer of the Delta property. Although such documents are privileged (strictly confidential as between the client and his or her lawyer, even after the client’s death), the applicant argued that they fall within the “wills exception” to legal advice privilege and therefore must be produced.

The court considered the various authorities for and against granting this order, including:

Geffen v. Goodman Estate, where the Supreme Court of Canada recognized that legal advice privilege may be displaced on public policy grounds in situations where the court is tasked with determining a  will-maker’s true intentions or whether a will-maker was subject to undue influence or possessed testamentary capacity, and applied this exception in the context of an inter vivos trust;

Armstrong v. Kotanko, where the BCSC applied the wills exception to the circumstances surrounding the transfer of a property owned by the deceased into a joint tenancy during his lifetime;

Gordon v. Gilroy, where the BCSC found that the wills exception did not apply in a wills variation action when the purpose in seeking disclosure of solicitor-client communications was not to ascertain the intentions of the deceased, which were fully stated in the will itself, but rather to defeat those intentions;

Brown v. Terins, where the BCSC found that the wills exception did not apply in the context of a challenge to the validity of a cohabitation agreement and a will that left the entire estate of the deceased to his children to the exclusion of his spouse, as the purpose of the disclosure sought was not to determine the will-maker’s true intentions, but rather to challenge the grounds on which he excluded his spouse from his estate.

The court found that the deceased’s testamentary intentions were unclear – why would the deceased make a will including specific bequests to three of his children while simultaneously taking steps to transfer the only assets of value to the fourth child, therefore frustrating the bequests under the will? Finding that the deceased’s interests would be furthered by the disclosure of evidence to ascertain his true intentions, the court decided that this was a situation to which the wills exception applied. Accordingly, the court ordered the will-maker’s lawyer to produce documents relating to the deceased’s 2011 estate planning and to the transfer of the Delta Property from the deceased to Shelley.

This case demonstrates the importance of crafting an estate plan that includes clear instructions and in some cases, the reasoning behind certain decisions (for example, through the use of a WESA statutory declaration). We are here to help will-makers do just that! Call or visit us today to find out how.

This article is intended for information purposes only and should not be taken as the provision of legal advice. Richard A. Cleveland is a lawyer with the law firm of Cleveland Doan LLP and can be reached at (604)536-5002 or