Exactly How Privileged Are Your Estate Planning Discussions?

Just about anything that a client says to their lawyer is protected by solicitor-client privilege.

This is a cornerstone of our legal system and a fundamental right in Canada.¹ Clients can be open and candid with their lawyers because they know their communications will not be disclosed.

Strictly speaking, privilege survives the death of a client. Subject to certain exceptions, this means conversations you have with your estate planning lawyer are protected and cannot be disclosed after your death to the beneficiaries of your estate or to those who thought they would be beneficiaries but, as it turns out, are not.

In practice, however, exceptions to privilege are commonplace where the client is deceased. The "wills exception" in particular, can allow litigating parties to access a lawyer's planning file in instances where wills are challenged on the basis that a testator lacked testamentary capacity at the time of signature, or was unduly influenced to sign a