Courts Allow A Voice From The Grave — The "Testamentary Exception"

Not surprisingly, both a lawyer's confidentiality duty and the attorney-client privilege protection last beyond the client's death. But most courts recognize what they call the "testamentary exception" — allowing disclosure of otherwise privileged communications between the decedent and her lawyer in a dispute among those taking under a testamentary document. The doctrine recognizes that the decedent would want her intentions fulfilled when determining who receives a bequest (thus, it does not apply when a creditor or some other third party seeks the decedent's money).

In In re Estate of Seeber, No. E2022-01476-COA-R3-CV, 2023 Tenn. App. LEXIS 397 (Tenn. Ct. App. Sept. 27, 2023), beneficiaries under a 2009 will challenged the decedent's competence when she prepared a 2016 will leaving money to others. The court overruled the decedent's lawyer's objections, and applied the testamentary exception in allowing discovery of communications between the lawyer and her