Regarding estate law, one of the most important and first steps someone should take in their estate planning journey is creating a will to ensure that one’s estate is divided as one wishes. Of course, having a will cannot guarantee that family and friends will not disagree over a will’s authenticity or any conduct unbecoming by people who wish to influence a will. Estate litigation can sometimes be a lengthy and costly pursuit. This can be especially true when the parties involved in the dispute get caught in the weeds over smaller issues related to the matter.

This is the case in a recent decision issued by the Court of King’s Bench in Alberta, where the applicant sought to have one of the respondents produce notes the respondent took while talking to his lawyer. Questions of privilege came up, and the court was asked to determine whether the notes should be disclosed and to whom.

New will gives half of estate to one child

The applicant in the matter is one of the children of the deceased. The respondents are her four siblings and one of the sibling’s spouses. The deceased passed away on November 11, 2019. At that time, there were two wills in existence. The older two were dated May 19, 2015, while the most recent was dated March 14, 2019. The applicant is the personal representative under the 2019 will, which the respondents are challenging. The differences between the two wills are significant because the 2015 will would have divided the deceased’s estate into equal shares for his five children, while the 2019 will gave 50 per cent of the estate to the applicant (the decision does not state how the remaining 50% of the estate was to be divided).

Several affidavits were filed in response to the challenge of the will. This led to an issue where the applicant sought to see notes prepared by one of the respondents (“DWK”). At first, DWK refused to provide them following the request, not explaining. On January 3, 2024, the court ordered him to provide a better response, stating, “such response shall provide a clear response to the Undertaking as well as a sufficient description of privileged records such that the Applicant can assess the validity of such claimed privilege.”

DWK provided more information after being directed to, stating that the notes could not be shared due to solicitor-client privilege, telling the court they were contemplating strategic conversations with his lawyer.

The applicant then asked for the notes to be delivered to the court, who could review them confidentially and determine if they were protected by privilege. DWK opposed this as well.

The court sought to answer whether the notes should be produced for review and whether they are privileged.

Should the notes be produced to the court for review?

The applicant argued that it was appropriate for the court to review the notes to assess their privilege. She said her brother did not provide enough evidence about the notes to demonstrate their privilege. Meanwhile, DWK said the issue was “black and white” and that the notes were privileged but provided no authorities to support his claim.

The court wrote that the appropriate procedure to determine whether records are privileged comes from a 1997 Supreme Court of Canada decision, where the country’s highest court wrote,

“In order to determine whether privilege should be accorded to a particular document or class of documents and, if so, what conditions should attach, the judge must consider the circumstances of the privilege alleged, the documents, and the case.  While it is not essential in a civil case such as this that the judge examine every document, the court may do so if necessary to the inquiry.  On the other hand, a judge does not necessarily err by proceeding on affidavit material indicating the nature of the information and its expected relevance without inspecting each document individually.  The requirement that the court minutely examine numerous or lengthy documents may prove time-consuming, expensive and delay the resolution of the litigation.  Where necessary to the proper determination of the claim for privilege, it must be undertaken.  But I would not lay down an absolute rule that as a matter of law, the judge must personally inspect every document at issue in every case.  Where the judge is satisfied on reasonable grounds that the interests at stake can properly be balanced without individual examination of each document, failure to do so does not constitute error of law.”

The court considered this as well as litigation privilege, which speaks to the importance of a party being able to prepare for litigation without giving away their strategy. The court wrote that litigation privilege is not meant to be permanent in duration, and once the litigation ends, so does the related privilege.

The court heard from DWK, who said that the notes include those related to conversations with his lawyer and those with family members. He said the notes were a “jumble.” The court accepted that some notes relate to strategic advice but couldn’t determine whether the rest do without first seeing them. As a result, DWK was ordered to produce the notes to the court, which would then issue a ruling on whether they could be shared any further.

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