("'It is generally considered that the rule of privilege does not apply in litigation, after the client's death, between parties, all of whom claim under the client; and so, where the question before the court is as to the validity or genuineness of an alleged will, the attorney of the testator may, according to the weight of authority, testify as to all matters relevant to the issue, although his testimony involves a disclosure of confidential communications between himself and his client, at least when such attorney is one of the subscribing witnesses to the will, as in such case the testator must be considered as having waived the privilege by requesting the attorney to sign as a witness. A decedent's attorney has also been held competent to prove the existence and contents of a lost will; and, in an action involving the construction of a will, the attorney who drew the will may testify as to relevant communications of the testator.' . . . 'It may be laid down as a general rule of law, gathered from all the authorities, that unless provided otherwise by statute, communications by a client to the attorney who drafted his will, in respect to that document, and all transactions occurring between them leading up to its execution, are not, after the client's death, within the protection of the rule as to privileged communications, in a suit between the testator's devisees and heirs at law, or other parties who all claim under him. The reason for such an exception to the general rule excluding confidential professional communications is that the rule is designed for the protection of the client, and it cannot be said to be for the interest of a testator, in a controversy between parties all of whom claim under him, to have those declarations and transactions excluded which are necessary to the proper fulfillment of his will.' [note to In re Young's Estate, 94 P. 731 (Utah 1908).] The reason for excluding such communications, stated succinctly, is that it is essential to the administration of justice that clients should feel free to consult their legal advisers without any fear that their disclosures will be thereafter revealed to their detriment. As a matter of public policy, this rule should be rigidly enforced in order that men may secure legal advice, after frank disclosures to their counsel without which they would be unable to defend themselves from threatened wrong. After the death of the client, however, it has been held that the privilege may be waived when the character and reputation of the deceased are not involved, by his executor or administrator, or in will contests by his heirs or legatees. The deceased has no longer any interest in the matter."; noting that because "this is a testamentary contest between the heirs at law on the one side, claiming that the decedent died intestate, and the devisee, claiming that the paper offered is the true last will and testament of the decedent, we conclude that the privilege does not exist.")
Case Date |
Jurisdiction |
State |
Cite Checked |
1919-01-01 |
State |
VA |
B 3/16 |