What to do when the original will can't be found | Virginia Family Estate Dispute LawyerThe attorney-client privilege is a familiar concept, even to most non-lawyers.  Usually, when someone communicates with an attorney to seek legal advice or counsel, that communication is shielded from disclosure.  The privilege is designed to encourage open dialogue between clients and their lawyers by eliminating the possibility that others, like courts and adverse parties, can force attorney-client communications to be revealed.

As is often true in the law, however, the attorney-client privilege is subject to certain limitations.  One such limitation, commonly referred to as the "testamentary exception." specifically applies in estate and trust disputes.

What Is The Testamentary Exception in Virginia?

In disputes between heirs or beneficiaries under a decedent's will, communications between the decedent and their estate planning lawyer can shed light on important issues.  For example, an estate planning lawyer may have knowledge of the testator's mental capacity or whether the testator was subject to any potential undue influence.  They likely had conversations with the testator about how they intended to divide their property.  They may even know about the existance and contents of a lost will.

But are the decedent's communications with their estate planning lawyer subject to the attorney-client privilege, such that they cannot be revealed in a will contest or other estate dispute?  Under the testamentary exception to the attorney-client privilege, the answer is usually "no."

The Supreme Court of Virginia has applied the testamentary exception for over a century.  Under Virginia's testamentary exception, in a dispute between heirs or beneficiaries of an estate, an attorney who helps a testator with the preparation and excecution of a will may testify about their communications with the testator.  As long as the communications relate to the testator's estate plan, they are not subject to the attorney-client privilege.

One common explanation for the testamentary exception is that a testator would not intend for the privilege to apply to attorney-client communications that might help clarify their wishes after they die.  Therefore, as long as the communications do not implicate the testator's character or reputation, a deceased testator has no interest in shielding them from disclosure in a suit between heirs or beneficiaries of their estate.

What About Virginia Trusts?

Today, it is common for people to dispose of their property through a trust agreement, rather than a will.  Usually, this is done using a "pour-over" will, which leaves all of the decedent's property to their trust.  The trust agreement, in turn, describes how the property is to be divided amongst the trust's beneficiaries.  This raises the question: Does the testamentary exception also apply to communications between relating to a decedent's trust?

While the Supreme Court of Virginia has recognized that the testamentary exception applies to wills and "other similar documents," the Court has not explicitly held that it applies to trusts.  Courts in many other states have been more clear, recognizing that a trust which disposes of a decedent's property is functionally equivalent to a will.

Citing those cases, we have successfully argued to a Virginia circuit court that the testamentary exception should be applied to require the production of attorney-client communications relating to a trust.  Given the Supreme Court's recognition that the testamentary exception applies to "other similar documents," it seems likely that most courts in Virginia would follow suit.

Benjamin P. Kyber
Richmond Appellate Law Attorney Serving Virginia, Henrico County.
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