A very useful lesson comes in the recent Saskatchewan decision in Nelson v Wagner. The decision offers guidance on when a court will override claims of solicitor-client privilege, and disclose the file of the solicitor who dealt with a testator.
In Nelson, the applicants had commenced a proceeding in which they allege undue influence on the part of John James Nelson in respect of both a will and a transfer of land by Hazel Nelson, deceased.
The applicants sought the solicitor’s file of James Turner, the lawyer who had prepared the will. Such a disclosure request is common, as the solicitor’s file notes or materials will often provide helpful evidence on the intentions of the deceased. Such evidence can assist the Court in determining the intention of the testator.
Counsel for James Turner, said that Turner could not disclose the contents of his file, without a court order directing Turner to do so, because to do otherwise would breach solicitor‑client privilege.
Counsel for Turner did acknowledge the “wills exception” to solicitor-client privilege, which posits that privilege may be overcome where such disclosure will help determine the true intentions of the testator. However, Mr. Turner argued that unless and until the court has first directed a trial of the issue of undue influence, the wills exception does not permit the disclosure order sought.
The applicants disagreed, and wanted the solicitor’s file released now, before the Court had decided whether to order a trial. The applicants said that it was appropriate to disclose it now, because the solicitor’s file itself might reveal evidence which would assist the court in deciding whether to direct the trial of issues in the first place.
The Court agreed with the applicants and ordered the release of the solicitor’s file. The Court reasoned that to do so would further the interests of the deceased client because the evidence would help the Court ascertain what his or her true intentions were.
The Court did recognize that an applicant would need to show more than a mere allegation of undue influence. However, here, there was already significant evidence of undue influence that went beyond a mere allegation. The Court held that as long as there were credible allegations of undue influence, then the appropriate threshold to order disclosure, will have been satisfied:
 I do not disagree that there is an initial threshold requirement that should be met before a court orders production of a file that may be subject to solicitor-client privilege. However, that threshold requirement is not that this court must first decide whether or not to direct a trial of the issue regarding undue influence. The two‑step process argued for does not require that I first direct a trial of the issue of undue influence. So long as there are credible allegations of undue influence, as there are here, then in my opinion the appropriate threshold has been satisfied. The production, in advance of the decision whether or not to order trial of such an issue serves Foundational Rule 1-3(3)(a), which states:
(3) To achieve the purpose and intention of these rules, the parties shall, jointly and individually during an action:
(a) identify or make an application to identify the real issues in dispute and facilitate the quickest means of resolving the claim at the least expense; … .
The Court noted a number of reasons in favour of production of the file:
- Early disclosure of the file may significantly assist counsel on whether or not to order trial of the issue of undue influence;
- If all parties have this information early on in the process it may result in settlement;
- If not, it will surely serve the purposes of having the claim justly resolved in a timely and the most cost effective manner.
For all of the above reasons, the Court ordered that the file was to be disclosed forthwith.
Lesson offered by Nelson v Wagner:
To understand the full implications of Nelson, we must understand the context of a will challenge under Saskatchewan law.
Typically, the challenger of a will must go through a two step process:
- Stage 1: The challenger must show that their challenge has raised a genuine issue of capacity or coercion, and is not mere speculation or a fishing expedition;
- Stage 2: If the court finds there is a genuine issue, the court will set the challenge down for a trial process, to be determined by a trial.
In Saskatchewan, it is not uncommon for a defender of a disputed will, to initially resist giving up the solicitor’s file to a challenger. The defender (as occurred in Nelson) will argue that it is premature to disclose the privileged will file, until the challenger has passed stage 1, and actually proven a genuine issue.
This position can raise difficulties for challengers, as it can pose a catch 22. If the most crucial evidence of incapacity or coercion may sometimes be in the solicitor’s file, how can the challenger best present their evidentiary case for stage 1, without first accessing the evidence in solicitor’s file.
Thus, Nelson clarifies that the challenger of a Will now has the opportunity to obtain the solicitor’s file, before they have satisfied stage 1. All that appears to be required is that the challenger simply provide evidence raising “credible allegations” of incapacity or undue influence.