The Attorney-Client Privilege in Estate, Trust and Will Litigation

Evidence is important in all litigation, but it is especially important in estate litigation because it can be hard to acquire. In cases involving claims that an estate document is invalid because of fraud, duress, lack of capacity or undue influence, there is rarely direct evidence; thus, the plaintiff must often rely on circumstantial, indirect evidence. 
Many times a rich source of evidence in estate disputes is the attorney or law firm who drafted the relevant estate documents. He/she is familiar with the client’s temperament,  intentions and the circumstances surrounding a given document’s execution. It is typical for the estate planning attorney’s records to be subpoenaed in discovery. Inevitably, the attorney will file a motion to quash stating that the attorney is not at liberty to divulge documents or discuss the matter because it would infringe upon the attorney-client privilege. Under Section 491.060(3), RSMo, “[a]n attorney, concerning any communication made to the attorney by such attorney’s client in that relation, or such attorney’s advice thereon, without the consent of such client.” In the attorney-client relationship, the client is the “holder” of the privilege. It is his/hers to waive. Often times in estate cases, however, the client whose documents are being scrutinized is deceased. In such cases, what happens if there is no one living who can waive the privilege? 
After the death of a client, the client’s representatives may waive the deceased client’s attorney-client privilege. Estate of Hebbeler, 875 S.W.2d 163 (Mo. Ct. App. 1994). The question of who constitutes a “representative” has not been defined at length in Missouri case law, but the Missouri Supreme Court has generally suggested that the attorney-client privilege may be waived by claimants/interested parties in a deceased client’s estate. Wilcox v. Coons, 220 S.W.2d 15, 19 (Mo. 1949) (suit between grantees in a deed and a devisee in a decedent’s will where both sides were claiming ownership under the respective instruments, either the grantees or the devisee could waive the privilege). From experience, moreover, Courts are inclined to favor the disclosure of facts over preserving the privileged of a deceased individual. Many times a court will order a protective/confidentiality order limiting the disclosure as a way to mitigate the potential harm. 
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