Where a Will contains an ambiguity, parties interested in the estate may have competing interpretations about the decedent’s true intent. In such cases, these parties may wish to seek evidence of the decedent’s intent from the drafting attorney. It was the drafting attorney, after all, that spoke directly with the decedent about her intent in creating the Will and the attorney’s notes, file, or memory may help explain the ambiguity. Also, where there exists a claim as to the validity of a Will, a contestant may wish to discover the communications as relevant to the testator’s state of mind or capacity when the Will was executed.

These scenarios beg the question: may the drafting attorney disclose these communications to the interested parties? As you may have guessed, the communications between a client creating a Will (the “testator”) and her attorney are protected by the attorney-client privilege. This privilege belongs to the testator, not the attorney, and the attorney cannot disclose any communications to third parties unless expressly authorized to do so by the testator. Yet, in the above-scenario, the issue clearly is that the testator has died (now referred to as the “decedent”), and can no longer authorize disclosure.

A Personal Representative appointed for the decedent’s estate generally has the authority to do anything which the decedent would have been able to do during her lifetime. The Personal Representative is said to “stand in the shoes” of the decedent. It therefore falls upon the Personal Representative to decide whether to waive the privilege to permit an inquiry into the communications between the decedent and the drafting attorney. Or, the Personal Representative may claim the privilege on behalf of the decedent and prevent disclosure of the communications.

There is an important exception to this rule. Where the two interested parties claim under the same decedent and the question is as to the disposition of the decedent’s property, “the reason for the privilege does not exist, and neither can set up a claim of privilege against the other.” Phillips v. Chase, 201 Mass 444, 449 (1909); See, Mass. R. Evid. § 502(d)(2).

It is also important to note that “Personal Representative” is a very specific term. Under the Massachusetts Uniform Probate Code, there are a number of variations of the position, including “Voluntary Personal Representatives” and “Special Personal Representatives” who may not, under the circumstances, possess the authority to waive the privilege (in fact, the authority of a Voluntary Personal Representative - for small estates - is highly limited and is not technically an actual “Personal Representative” under the Code). Moreover, even though an individual may be the “named” Personal Representative in a Will, or the presumptive Personal Representative under the laws of intestacy, that individual has no authority to waive the privilege until Letters of Authority have actually issued from the Registry of Probate.

If you have questions as to your authority to discover certain information from a Personal Representative, or if you're a Personal Representative unsure how to proceed in response to challenges by heirs, please give us a call today.