Courts Allow a Voice From the Grave — the “Testamentary Exception”

December 6, 2023

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 wealthy client who had died with no issue. Id. at *30-31. Two days earlier, another court applied its state’s statutory “testamentary exception” in requiring a lawyer for a decedent father to produce documents about his client’s “state of mind and whether he was subject to duress or undue influence at the time [the decedent’s son] withdrew money from a joint account.” Ginter v. Jaeger, Case No. 22-C-1114, 2023 U.S. Dist. LEXIS 174772, at *1 (E.D. Wis. Sept. 25, 2023). It is unclear why those communications were “relevant to an issue between parties who claim through the same deceased client” (the statute’s scope). Id. at *2 (citation omitted).

The “testamentary exception” rests on the understandable notion that the decedent would want her lawyer to speak up if that was required to assure that the decedent’s intentions were satisfied.