Attorney-Client Privilege During a Will Contest

Lately, I have been hearing a great deal of talk about a case currently before the Illinois Supreme Court. The high court recently heard oral arguments in a case called Brunton v. Kruger, which asks the court to consider the scope of the accountant-client privilege during probate. Specifically, the court must determine what happens to the privilege after the client dies and to what extend this privilege can be waived.

Here are the basic facts of the case: An elderly couple hired an accounting firm to perform estate planning services. Both spouses executed a will and trust. After the wife died, her will was admitted to probate. One son received the family farm, while the other three sons split the remaining property equally. The daughter contested the will, claiming undue influence. The sons subpoenaed the estate documents from the accountants, who complied. However, when the daughter subpoenaed the same documents, the accountants invoked the accountant-client privilege.

The trial court ruled that the sons waived the accountant-client privilege. The appellate court affirmed, holding that:

The accountant-client privilege, like the attorney-client privilege, is automatically waived during a will contest; and

Regardless, the estate held the accountant-client privilege, which was waived when the sons subpoenaed the documents.

The case is now pending a decision in the Illinois Supreme Court.

Attorney-Client Privilege is Automatically Waived in a Will Contest

The attorney-client privilege protects private communications made between an attorney and his client. Note that this privilege endures after the professional relationship has ended – and even after death.

However, the attorney-client privilege is not absolute. Illinois courts have noted several exceptions, including inheritance disputes. The privilege is automatically waived during a will contest because the law presumes that the decedent wants to protect his intended distribution scheme. In other words, if the decedent’s attorney has documentation concerning the decedent’s testamentary intent, then the attorney must supply that information if subpoenaed and cannot invoke attorney-client privilege. The privilege no longer exists in such situations.

A will contest is the only probate scenario that automatically waives attorney-client privilege. However, the estate (which holds the privilege) can waive privilege by releasing the otherwise privileged documents.

Here, the appellate court found a similar exception to the accountant-client privilege in Brunton. And even if the privilege was not automatically waived during the will contest, the court found that the sons waived privilege by subpoenaing the estate planning documents from the accountants. The Illinois Supreme Court will likely render a decision on this issue within the next few months.

At the Gierach Law Firm, we believe the attorney-client privilege is sacred. However, it is important to understand that this privilege no longer exists if your will is contested during probate. At the same time, it is important to ensure that your testamentary wishes are carried out. Contact one of our Naperville estate planning attorneys today for a consultation today and find out how our experience can benefit you.