This article provides a Saskatchewan estate litigation update, offering a brief synopsis of the 2018 Saskatchewan decision in Figley v. Figley, 2018 SKQB 102, 21 C.P.C. (8th) 149.
Figley v. Figley reminds estate litigators of the important “wills exception” to solicitor-client privilege, which can ensure key solicitor records are producible, as long as they relate to the intention of a testator.
This case arose out of the estate of Ray Kenneth Figley, who died on October 4, 2007. Eugene Figley, as plaintiff, was attempting to probate what purported to be the Last Will and Testament of Ray Figley (the “Will”). Ronald Figley and Stanley Figley opposed probate, disputing the testamentary nature of the alleged Will.
Ronald Figley requested a court order, allowing Ronald to question a local lawyer (not a party to this action) who had been a witness to the Will now being probated. Ronald Figley requested a court order, first, to examine the lawyer, and second, to obtain certain documents from the lawyer, relating to the preparation and execution of the Will.
The Court’s decision
On the first request to orally question the third-party lawyer, the Court looked to Rule 5-20 of the Saskatchewan Queen’s Bench Rules. This rule outlines when a court will order the questioning of a third-party. The critical wording in the Rule, is underlined below, for emphasis:
5-20(1) The Court may grant leave to question any person who may have information relevant to any matter in issue in the action, other than an expert engaged by or on behalf of a party in preparation for contemplated or pending litigation.
(3) An order pursuant to subrule (1) must not be made unless the Court is satisfied that:
(a) the applicant has been unable to obtain the information from other persons whom the applicant is entitled to question or from the person the applicant seeks to question;
(b) it would be unfair to require the applicant to proceed to trial without having the opportunity of questioning the person; and
(c) the questioning will not:
(i) unduly delay the commencement of the trial of the action;
(ii) entail unreasonable expense for other parties; or
(iii) result in unfairness to the person the applicant seeks to question.
Rule 5-20(3) says that before a person can question a third-party, the person seeking to question, must first have been “unable to obtain the information from other persons whom the applicant is entitled to question.”
Here, the Court found that the applicant, Ronald, had apparently not made such efforts. Ronald had previously had the chance to question Eugene Figley, in Eugene’s capacity as the purported executor of the estate. Eugene Figley would have been obliged in such questioning, to inform himself of the discussions that the deceased had with his lawyer surrounding the Will, including documents prepared by the lawyer.
However, in that previous questioning opportunity, Ronald Figley did not ask any questions of Eugene Figley to attempt to obtain this information. Thus, Ronald had not satisfied this precondition. Ronald’s application to question the third party lawyer, failed on this basis.
This then left the second part of Ronald’s application. It was a request for an order requiring the local lawyer, as a non-party, to produce certain documents relating to the Will’s execution.
The Court consequently turned to consider Rule 5-15:
5-15(1) On application, and after notice of the application is personally served on the person affected by it, the Court may order the production of a document from a person who is not a party at a date, time and specified place if:
(a) the document is in the possession, custody or control of that person;
(b) there is reason to believe that the document is relevant to any matter in issue; and
(c) the person who has possession, custody or control of the document might be required to produce it at trial.
The third-party lawyer had resisted the application, noting the sanctity of the solicitor-client relationship, and the privilege that attaches to documents surrounding the making of the Will.
However, the Court rejected any defence of privilege. The Court noted the decision in Geffen v. Goodman Estate,  2 S.C.R. 353 (SCC), and other Canadian case law. In such previous decisions, Canadian courts had established a so-called “wills exception” to privilege. The principled basis for such an exception, was that if privilege were automatically upheld, such would prevent a court from seeing documents which could shed light on the true intention of a testator’s intention over their estate. As such, the lawyer’s documents were ordered disclosed.
Lessons from Figley:
Figley emphasizes a useful tool available to parties involved in disputes over a Will’s validity. Namely, a key source of evidence of a deceased testator’s intentions, or voluntariness, can sometimes be found in the lawyer’s documents which were created when a Will was made.
Such documents would ordinarily be privileged, but are subject to a “wills exception.” This means that if the documents are capable of showing a deceased’s intentions for their estate, they may be produced to shed light for a court. As such, parties should consider if such documents exist in their Will dispute, and may wish to take steps to determine their contents. As shown in Figley, it may be that a formal court application is required, however.
Contacting a Lawyer on this Subject
For more information on this subject or specific legal advice, contact James Steele at 1 306 933 1338.
The above is for general information only. Parties should seek legal advice prior to taking action in specific situations. For more information or for specific legal advice, please contact James Steele at 1 (306) 933-1338 and firstname.lastname@example.org.
Robertson Stromberg LLP offers legal advice and representation in all areas of law, including experience in estate litigation.