By Jennifer F. Hillman, Esq.
Most communications between an attorney and client are privileged pursuant to New York Civil Procedure Act (“CPLR”) § 4503. There is, however, a carve-out in proceedings concerning the probate, validity or construction of a will. Pursuant to CPLR § 4503(b), an attorney is required to disclose information concerning the preparation, execution, or revocation of any will or other relevant instrument in these proceedings, provided the information does not “disgrace the memory of the decedent.”
An interesting scenario arises when the disclosure of a living person’s will is sought in a probate proceeding as evidence of a larger concerted testamentary plan among several individuals. For example, perhaps a surviving spouse was given a general power of appointment under a will, but there was an alleged agreement between the spouses that the power would not be exercised. What if the attesting witnesses to a will were not the attorney or employees of the law firm – does that waive the privilege because a third party was present? What if the witnesses never reviewed the contents of the will?
There are two issues operating here. There is the attorney-client privilege that may exist between the attorney and the client (provided a will is considered a communication). There is also the expectation of confidentiality when a will is drafted and its implicit ambulatory nature – it can be changed at any time up until the testator dies.
Different surrogates have taken different views of this issue. In Matter of Johnson, 127 Misc. 2d 1048, 488 N.Y.S.2d 355 (Sur. Ct. New York County 1985) [enhanced opinion available to lexis.com subscribers], Surrogate Roth reviewed whether a protective order should issue and a demand for production of documents regarding the will of a (living) surviving spouse should be stricken. This involved the infamous and contentious Estate of J. Seward Johnson between Johnson’s children and his surviving spouse Barbara “Bashia” Johnson. The children sought disclosure of the wills to determine whether Mrs. Johnson exercised or failed to exercise her limited testamentary power of appointment which was granted to her in Mr. Johnson’s will.
Upon review, Surrogate Roth found that the request was relevant, and that, among other things, neither party had considered that a will remains ambulatory and can be changed any time prior to death. Surrogate Roth agreed with Wigmore's view that
there are few communications that are more confidential than those relating to the preparation, contents and execution of a will when made within the scope of the attorney-client relationship, not in the presence of a stranger and not made to the attorney with the intention that he communicate its contents to someone else.
Surrogate Roth also found that the carve-out in CPLR § 4503(b) concerning the probate of wills did not apply to the demand for production of a will during the lifetime of a testator. The protective order was granted.
A later decision by Surrogate Holtzman in Matter of Freilich, 179 Misc. 2d 884, 686 N.Y.S.2d 294 (Sur. Ct. Bronx County 1999) [enhanced opinion] distinguished Johnson and decided to the contrary. Surrogate Holzman found that whether or not the respondent and the decedent executed wills at about the same time containing similar provisions disinheriting the same family member was not determinative of respondent’s alleged undue influence over the decedent. However, the Court did find that absent a privilege which barred disclosure of the living person’s will, its production could lead to admissible evidence.
In his analysis, Surrogate Holzman found these instruments were similar to a diary that reflects the plans and desires of the testator, and were not confidential communications to an attorney. The court did note, however, that a living person’s will should be kept confidential (like tax returns) unless disclosure was necessary. The Court ultimately found that limited disclosure was appropriate.
Matter of Axinn, 2011 N.Y. Misc. LEXIS 363 (Sur. Ct. Nassau County 2011) [enhanced opinion], focused again on the confidential nature of a living person’s will. The court reviewed whether a living person’s will must be produced when the individual had entered into an agreement with the decedent that obligated them to utilize certain provisions in their will as part of a joint estate plan. The Court found that the individual could not have had a reasonable expectation of privacy concerning her estate plan when she was a party to an agreement which bound her to effectuate a joint testamentary plan with the decedent. It was also determinative in the court’s decision that the individual’s actual will was not sought, but unredacted letters sent to the decedent regarding his and the individual’s estate plan.
These cases show an interesting and varied approach to production of a living person’s will. To avoid disclosure of a living person’s will, estate practitioners may want to consider alternative approaches including stipulated facts, confidentiality agreements where the documents are viewed only by attorneys, or seeking an in camera review by the court to determine relevance before disclosure.
Jennifer F. Hillman is an attorney at Ruskin, Moscou Faltischek, P.C., Uniondale, New York where her practice focuses in the area of trust and estate litigation. She can be reached at email@example.com
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