Law Times

Law Times • OcTOber 24, 2011 FOCUS PAGE 9 Lawyer ordered to give will to prospective trustee New case considers solicitors' obligations when they hold document BY JULIUS MELNITZER For Law Times A recent decision by On- tario Superior Court Justice David Brown in Hope v. Martin provides useful guidance on how lawyers who are in possession of an original will ought to deal with ques- tions of solicitor-client privi- lege and the duty of confi den- tiality. Th e case arose after Alex- andra Bion died in March 2011. She had executed a will in which she appointed her daughter, Christian Dingman, and her lawyer, William Mar- tin, to act as executors. Martin prepared the will and had it in his possession. Both Dingman and Mar- tin renounced their executor- ship after Bion's death. Bion's stepdaughter Julie Hope, also named as a benefi ciary, was prepared to apply for appoint- ment as estate trustee. Hope required the original will to apply for probate and retained Ameena Sultan of To- ronto's Whaley Estate Litiga- tion to represent her. Sultan re- quested the original will from Martin but, citing confi denti- ality and solicitor-client privi- lege, he insisted that she obtain a court order. Counsel for Dingman then sent Martin a direction autho- rizing the release of the will to Sultan for probate purposes. Martin replied that Dingman had no authority to direct him as she had resigned from her position as executor. "I am writing in my capac- ity as the solicitor for Alexan- dra Bruce Bion," Martin stated in his letter. "My understand- ing of the law is that I can pro- vide the will only to the estate trustee. Th is is based on confi - dentiality and the rules of the law society." Martin also asked Ding- man's lawyer to provide him with support for his position and made a point of stating that he was "not attempting to be diffi cult." Th e lawyer countered that the fact that all of those with a fi nancial interest in the will had asked that it be turned over to Sultan was suffi cient authority to do so. He also cited Stewart v. Walker for the proposition that no privilege be attached to the will. Martin reiterated his posi- tion that he could only deliver the will to someone who had authority to so direct him. In his view, that meant the two executors named in the will , and as both had resigned, there was "no one who has that au- thority." He would retain the will pending a court order and added that this "should not prevent the intended adminis- trator from bringing the appli- cation to the court." Sultan then wrote to Mar- tin to advise that all of the benefi ciaries had agreed to Hope's appointment. She not- ed she could provide consents from all of them supporting Hope's appointment. Martin stood fast in his in- sistence that only the execu- tors could request the will but noted he wouldn't oppose an application to produce it. True to his word, Martin did consent to such an application. Th e matter then came before Brown, who felt compelled to "off er a few comments on how the parties might have avoided the cost and delay associated with this motion." In Brown's view, there was no need to put Hope in the position of bringing the mo- tion before him. Contrary to the view expressed by Martin, Brown noted that the Rules of Civil Procedure required the original will to accompany an application for appointment of an estate trustee and the privilege issue ought not to have stood in the way of that. "In my view, the issue of privilege does not even arise be- cause, as noted by the Supreme Court of Canada in the Good- man estate case, where the interests of the party seeking the information are the same as those of the 'client' who re- tained the solicitor in the fi rst place, privilege does not come into play," Brown wrote. Here, where Hope was seek- ing to further the interests of the deceased by administering her will, there was no basis for Martin to assert solicitor-client privilege against her. "So, too, in respect of the so- licitor's duty of confi dentiality to his client under the Rules of Professional Conduct," Brown added. "As the commentary to Rule 2.03(1) observes, 'In some situations, the authority of the client to disclose may be implied.' Where a deceased made a will, it follows that the deceased intended the will to be acted on and thereby au- thorized his or her solicitor to disclose the will to the appro- priate person so that intention could be fulfi lled." Th e real issue, then, was whether the person requesting the will had the authority to do so. "Th e appropriate response will depend upon the particu- lar circumstances of the case and the application of practical judgment and common sense," Brown wrote. "Where a named executor makes the demand, production should be made. Where a solicitor is faced with confl icting demands, he can le- gitimately require the confl ict- ing parties to obtain a court order. However, where, as here, the solicitor knew that both executors had renounced and there was no evidence of con- fl icting demands to assume the Brown, was that administration of the estate, the solicitor should have exer- cised some practical judgment to ensure that the testatrix's intentions were performed without imposing unnecessary costs on the estate." Th e upshot, according to a solicitor should insist on a court order only where there was a reason- able basis to question the au- thority of the person making the demand. In his view, no such basis existed here. Sultan, however, says the situation is a unique one. "I don't fault Mr. Martin," she says. "We took a position that we thought made good sense and he wasn't comfortable with that. But at least we now have a decision that gives some help- ful guidance to the bar in these situations. Martin didn't respond to Law Times' request for com- ment. THE MOST RELEVANT CASES RIGHT WHERE YOU NEED THEM BESTCASE All of the most relevant decisions are right on your desktop with the online research service BestCase. You'll have access to Canada's leading law reports and renowned case summary services, as well as a comprehensive collection of unreported decisions dating back to 1977. Also benefit from the case citator feature. Our diamond image helps you quickly find decisions selected by experts to identify the most relevant cases first. 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