The “testamentary exception” allows those claiming under a will to discover the decedent’s communications with his or her lawyer – based on the understandable assumption that the decedent would want his or her wishes fulfilled. The exception is narrowly construed. For instance, it does not apply if a creditor sues the estate.
In Steele v. Kenna, — S.E.2d —, 2026 N.C. App. LEXIS 147 (N.C. Ct. App. Feb. 18, 2026), a North Carolina court applied the testamentary exception for the first time to a trust rather than to a will. The situation seemed like a textbook example of the exception’s logic. In 2007, the grantor named as his trust’s beneficiaries “my nieces and nephews; and my wife’s nieces and nephews.” 2026 N.C. App. LEXIS147, at *2. In later amendments, the grantor mentioned only “my nieces and nephews as survive me.” Id. at *2-3. Did those later revisions merely use a shorthand to include the same beneficiaries, or did they reflect a desire to leave his money only to his blood relatives?
To make this family squabble more interesting, the grantor’s widow was the trustee – so her nieces and nephews were at risk of losing money under the revised trust documents. The testamentary exception makes sense in such a situation.