Florida’s 3rd District Court of Appeal held on October 26, 201 that an estate planning attorney must break the attorney-client privilege for deceased client must by testifying in a will contest trial for undue influence. The trial court ordered the attorney to testify, and the attorney refused. The attorney appealed the trial court’s order to the court of appeal to review the issue as a matter of law. The 3rd District Court of Appeal denied the attorney’s petition and the trial court’s order now must be enforced.
The events of what led to the holding are interesting. The original proceedings by the plaintiffs sought to revoke the probate of two wills, one that was executed in 2012 and another that was executed in 2013. Four of the testator’s children challenged their mother’s mental capacity to make these wills, and assert the wills were the product of undue influence by the fifth child. The fifth child was the only child listed as a beneficiary in the 2013 will, while the other children were disinherited.
Christopher Vasallo was the attorney that prepared the will for the mother. He claims he prepared the wills on his client’s behalf and her discretion. Likewise, Mr. Vasallo asserted the attorney-client privilege for his now deceased client. The privilege is a legal privilege that allows the attorney and the client to keep communications between them private. This is usually asserted as an evidentiary privilege when a demand for communications has been made, such as a discovery request or demand the lawyer should testify under oath.