The “Testamentary Exception”

July 6, 2016

All jurisdictions recognize that the attorney-client privilege lasts beyond the client’s death, and that lawyers who represented the client must assert that privilege if a third party seeks privileged communications. However, the so-called “testamentary exception” can trump this general principle.

In Eizenga v. Unity Christian School, 2016 IL App. (3d) 150519, a dispute arose between beneficiaries of an inter vivos trust after the trustor died. Some beneficiaries claimed that the trustor’s lawyer exerted undue influence. The court noted that Illinois courts have recognized the “testamentary exception” since the nineteenth century — under which beneficiaries involved in a will contest may access the decedent’s otherwise privileged communications. Id. ¶ 24. The court then applied the exception to the situation before the court — in which decedent created an inter vivos trust, but “changed the beneficiaries of the Trust several times before he died.” Id. ¶ 29. Because privileged communications “are relevant to the resolution” of the dispute between the former beneficiaries and the current beneficiary, the testamentary exception allowed the quarreling beneficiaries access to the privileged communications. Id.

The testamentary exception might seem counter-intuitive at first blush. But it reflects the law’s recognition that the deceased client would want her testamentary intention fulfilled, thus freeing her lawyer to disclose privileged communications to those seeking courts’ guidance about the meaning of some testamentary document. Given this principle, the exception predictably does not trump the privilege when some third party such as a creditor seeks the privileged communications.