Under What Circumstances Can a Lawyer Release an Original Will?

In the recent decision of Hope v. Martin 2011 ONSC 5447 (CanLII), Justice Brown considered the circumstances under which a drafting solicitor can release an original Will. In that case, in which Whaley Estate Litigation was involved, the two named executors (including the drafting solicitor) had renounced and the Deceased’s former stepdaughter sought to be appointed Estate Trustee. The prospective Estate Trustee requested the original Will for the probate application, however was informed by the drafting solicitor that he could not release it due to solicitor-client privilege and confidentiality and that the only party he could release it to was the named Estate Trustee.

The prospective Estate Trustee brought a motion for the release of the original Will, which prompted comment from Justice Brown. In his reasons, Justice Brown wrote that “[w]here a deceased made a will, it follows that the deceased intended the will to be acted on and thereby authorized his or her solicitor to disclose the will to the appropriate person so that intention could be fulfilled.” Justice Brown continued, calling for “practical judgment to ensure that the testatrix’s intentions were performed without imposing unnecessary costs on the estate.” Justice Brown cautioned that lawyers should not insist on Court orders for the release of an original Will unless there are reasonable grounds to question the authority of the person seeking the Will. The Will was ordered released to the prospective Estate Trustee.

The decision is linked here: Hope v. Martin 2011 ONSC 5447 (CanLII)

Click here to see the Law Times report on this decision