Attorneys Who Draft Estate Planning Documents: Are Their Lips Truly Sealed?

Imagine the following scenario. John Doe meets with Attorney Jane Roe to go over his estate plan and to have Attorney Roe eventually prepare a will for him to sign. Mr. Doe explains his wishes to Attorney Roe, who prepares the will, which Mr. Doe ultimately signs.

After the will is signed, Mr. Doe arranges for his longtime caretaker to be added to his brokerage account as a co-account holder. The brokerage account has hundreds of thousands of dollars in it. Mr. Doe subsequently dies, leaving the caretaker with the proceeds in the joint account.

The personal representative of Mr. Doe’s estate retains an attorney – Bob Smith – to sue the caretaker to “claw back” the money in the account, claiming that Mr. Doe intended only that the caretaker be on the account for convenience purposes. Attorney Smith summonses Attorney Roe to testify at a deposition, but when she is asked to relate discussions she had with Mr. Doe about his estate planning intentions, Attorney Roe refuses to answer the question, citing the attorney-client privilege.

Was Attorney Roe within her right to refuse to answer the question?

The answer, quite thankfully, is “No”.

To be sure, our law generally protects the confidentiality of communications between an attorney and client. This allows someone to meet or speak with his or her attorney and be assured that whatever they say during that meeting or conversation will not be disclosed by the attorney. It also means that the attorney will not be compelled by a court to disclose the communication in a later legal proceeding.

But when it comes to the intentions of someone creating a will or trust, courts have generally set aside the privilege and have allowed cooperative attorneys the right to reveal their late client’s intentions, or have compelled uncooperative attorneys to do the same. The rationale behind this approach is simple and logical: In creating a will or trust, someone is making a clear statement as to who is to become the recipient of a person’s assets. Courts have ruled that these persons would actually want the attorney who prepared their will or trust to reveal their intentions so that their wishes may be carried out after they’re gone.

The practical benefit of this exception to the privilege plays itself out frequently in will and trust litigation. In most such cases the intention of the person creating the will or trust is very much at the center of the lawsuit. Depending on which side you’re on, the disclosure of those intentions through an attorney’s testimony can be either a blessing or a curse.

What Could Have Been Done?

In the above example, the estate planning attorney (Attorney Roe) could have made explicit in the estate plan documents that the caretaker either was to receive (or not receive) the brokerage account funds upon Mr. Doe’s death, depending upon Mr. Doe’s wishes. It would have also been helpful to see if the brokerage account establishment provisions could have been changed when the caretaker was added specify that the caretaker either would or would not be entitled to such funds. Unfortunately, estate plans frequently lack such language, thus placing the estate planning attorney in the position of having to explain the client’s intentions that were missing from the documents.

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