The Testamentary Exception to the Attorney-client and Doctor-patient Privileges - July 2007 - Trust and Estate Law

• Jurisdiction: Colorado,United States
• Citation: Vol. 36 No. 7 Pg. 87
• Pages: 87
• Publication year: 2007

36 Colo.Law. 87 Colorado Lawyer 2007.

2007, July, Pg. 87. The Testamentary Exception to the Attorney-Client and Doctor-Patient Privileges - July 2007 - Trust and Estate Law

The Colorado Lawyer

July 2007

Vol. 36, No. 7 [Page 87]

Articles

Trust and Estate Law

The Testamentary Exception to the Attorney-Client and Doctor-Patient Privileges

by Herb E. Tucker, Spencer J. Crona, Clara L. Brown

Trust and Estate articles are sponsored by the CBA Trust and Estate Section. Topics include trust and estate planning and administration, probate litigation guardianships and conservatorships, and tax planning.

Article Editors:

David W. Kirch, of David W. Kirch, P.C., Aurora - (303) 671-7726, dkirch@qwest.net; Constance D. Smith, of Rothgerber Johnson & Lyons LLP - (303) 623-9000 csmith@rothgerber.com

About the Authors:

This month's article was written by Herb E. Tucker Spencer J. Crona, and Clara L. Brown of Wade Ash Woods Hill & Farley, P.C. in Denver - (303) 322-8943.

This article reviews the testamentary exception, as it exists in Colorado law, to the rule that the attorney-client and doctor-patient privileges survive the death of the client and patient. The article also analyzes the considerations underlying the growing national trend to codify the testamentary exception in an effort to expedite discovery in will contests.

The Colorado Probate Code prescribes identification and effectuation of decedent intent for distribution of his or her property as one of the overriding purposes of the Code.(fn1) Case law in Colorado and throughout the country demonstrate that the testator's estate planning attorney and treating doctor can provide insight as to the testator's intent and cognitive function underlying his or her will. However, the attorney-client and physician-patient privileges can silence these witnesses or result in litigation to compel their testimony. This article provides an overview of the testamentary exception to the rule that the attorney-client and doctor-patient privileges survive death of the client and patient, and discusses the national trend toward codification of this exception.

Will Contest Litigation

In will contest litigation, counsel for the personal representative frequently asserts the attorney-client and doctor-patient privileges in response to the contestant's request for production of the decedent's estate planning and medical records. Pretrial discovery disputes regarding the decedent's records may result.

Where lack of testamentary capacity or undue influence are timely alleged, the central issue is identifying the true intent of the testator. The idea that the estate planning attorney's file is privileged in such circumstances may make it difficult to determine the intent of the testator. Relying on case law from the U.S. Supreme Court(fn2) and Colorado Supreme Court,(fn3) judges often deny the motion for protective order and grant the motion to compel production.

The Testamentary Exception to Attorney-Client Privilege

Since 1905, the Colorado Supreme Court has recognized the testamentary exception to the attorney-client privilege. In In re Shapter's Estate,(fn4) the Court rejected the argument that an attorney could not testify about client communications related to the decedent's will, stating:

after [the client's] death and when the will is presented for probate, we see no reason why . . . the attorney should not be allowed to testify as to directions given to him by the testator so that it may appear when the instrument presented for probate is or is not a will of the alleged testator. . . .

Fifty years later, the Colorado Supreme Court, in Denver National Bank v. McLagan,(fn5) again held that the testamentary exception permits an attorney who writes a will to testify after the testator's death as to attorney-client communications related to the execution and validity of the will.

In the 2001 decision of Wesp v. Everson,(fn6) the Colorado Supreme Court recognized that the testamentary exception to the attorney-client privilege allows an attorney who drafted the will of a deceased client to disclose privileged communications concerning the preparation and execution of the will. Under Colorado case law, the testamentary exception to the attorney-client privilege applies only where the nature of the dispute constitutes a will contest or a claim by succession. For example, the exception would not apply in a case involving a creditor's claim against a decedent's...