Confidential communications from a client to her lawyer for the purpose of obtaining legal advice are generally deemed to be privileged. Lawyers are ethically bound to maintain the confidentiality of these communications, and even a subpoena in litigation is insufficient to require the client or her lawyer to reveal these discussions. But estate planning practitioners should be aware – and their clients should understand – that the privilege which shrouds estate planning consultations can be overcome by waiver or through important exceptions recognized under the law.

First, if the estate planning client authorizes her attorney to share her communications with a third party, then attorney-client protection is likely waived. For attorney-client privilege to apply to a communication, it must be confidential. Authorizing an attorney to share communications with others – even a spouse or other family members – risks a waiver of the privilege. Estate planning counsel, therefore, should be careful to advise their clients that authorizing otherwise privileged communications with others, even children who are the beneficiaries of the estate, will likely waive attorney-client privilege.

Second, if probate litigation follows the death of an estate planning client, the privilege over communications between the client and her estate planning counsel may be waived, at least in part, under the testamentary exception to the attorney client privilege. The testamentary exception is based on the idea that the deceased whose estate plan is being challenged has impliedly waived the privilege because he or she would want their counsel to disclose communications that reveal the true intent of the testator.  This waiver is limited to situations in which the intent of the testator is in dispute in litigation between his or her beneficiaries. It does not extend to third parties who may be adverse to the estate.  The exception has been widely adopted in the United States. 

For these reasons, especially where the likelihood of probate litigation exists, estate planning counsel should carefully consider and advise clients as to the potential for waiver or subsequent disclosure of otherwise privileged communications.