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.
To determine if the attorney should break this privilege the appeals court first looked to Florida Statute 90.502(4)(b), that provides there is no privilege when a communication is relevant to an issue between parties who claim through the same deceased client.
A note to the law states that “[w]hen multiple parties claim through the same decedent, as in a will contest or a challenge to testate or intestate succession, each party claims to best 2 represent the interests of the deceased. To allow any or all parties to invoke the lawyer-client privilege prevents the swift resolution of the conflict and frustrates the public policy of expeditiously distributing estates by the testator’s wishes.”
This case seemed to reinforce what the Florida statutes already stated. The attorney-client privilege is very strong, and can only be defeated when a court orders the attorney to break the privilege, or in other extreme situations such as when the attorney is trying to prevent nearly certain death.
Here, it’s in everyone’s best interest for the attorney to break the privilege. There were four children that may have been wrongfully cut out of their inheritance due to undue influence by the fifth child. For more information on how evidentiary privileges or how to challenge a will for undue influence contact The Law Firm of David M. Goldman PLLC at 904-685-1200.