Probate, trust, guardianship and inheritance litigation
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Can A New York Executor Waive A Decedent’s Attorney-Client Privilege?

Yes, a New York executor of an estate has the authority to waive a Decedent’s attorney client privilege.

What Is New York’s Attorney Client Privilege?

New York’s attorney-client privilege can be found at CPLR §4503(a), which protects a “confidential communication made between the attorney or his or her employee and the client in the course of professional employment…”

The purpose of the attorney-client privilege is to foster open dialogue between an attorney and client, which is an essential part of effective representation.

Does the Attorney Client Privilege Survive Death?

Yes.  In New York, the attorney-client privilege survives the death of the client.  The right to waive the attorney-client privilege also survives the death of the client.

Can a New York Executor Waive A Decedent’s Attorney-Client Privilege?

In the November 2019 case of Matter of Thomas, the Appellate Division, Fourth Department determined whether an executor of a decedent’s estate has the authority to waive a decedent’s attorney-client privilege.

The Thomas case involved a dispute among the decedent’s children over Decedent’s company, New York State Fence Company.  The executor of the estate was one of Decedent’s sons.  No shares of the Company were identified as assets of the estate.  The Decedent’s other children began a proceeding challenging some transactions between the Decedent and the executor and also took issue with the executor’s failure to identify any Company shares as estate assets.

The executor waived the decedent’s attorney-client privilege.  The Decedent’s former counsel testified that she did not include a specific bequest with respect to Decedent’s Company shares in his most recent will because Decedent had already transferred those shares to his son (the executor).  The other children appealed.

The Fourth Department affirmed that an executor can waive the decedent’s attorney-client privilege.  This determination is in line with the Second and Third Departments.

The court further held that the executor can waive the decedent’s attorney-client privilege regardless of an executor’s self-interest in the information that might be disclosed, stating:

[W]e therefore reject petitioners’ contention that respondent should not have been allowed to waive the attorney-client privilege on decedents’ behalf as executor due to his own self-interest in the testimony of the decedents’ former counsel. Thus, we hereby join the Second and Third Departments in concluding that the attorney-client privilege may be waived by an executor.

Can A Drafting Attorney Waive a Decedent’s Attorney Client Privilege?

Yes.  Pursuant to CPLR § 4503(b):

In any action involving the probate, validity or construction of a will or, after the grantor’s death, a revocable trust, an attorney or his employee shall be required to disclose information as to the preparation, execution or revocation of any will, revocable trust, or other relevant instrument, but he shall not be allowed to disclose any communication privileged under subdivision (a) which would tend to disgrace the memory of the decedent.

Section 4503(b) is designed to protect both drafting attorneys and the deceased client in inheritance disputes.

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