Just about anything that a client says to their lawyer is protected by solicitor-client privilege.
This is a cornerstone of our legal system and a fundamental right in Canada.[1] Clients can be open and candid with their lawyers because they know their communications will not be disclosed.
Strictly speaking, privilege survives the death of a client. Subject to certain exceptions, this means conversations you have with your estate planning lawyer are protected and cannot be disclosed after your death to the beneficiaries of your estate or to those who thought they would be beneficiaries but, as it turns out, are not.
In practice, however, exceptions to privilege are commonplace where the client is deceased. The “wills exception” in particular, can allow litigating parties to access a lawyer’s planning file in instances where wills are challenged on the basis that a testator lacked testamentary capacity at the time of signature, or was unduly influenced to sign a will. In recent years, a further threat to privilege has emerged with the substantial compliance doctrine and the corresponding implication that unsigned draft versions of a will may be validated.
In the recent case Allison v. McBride [2], Justice Myers outlines the scope of solicitor-client privilege in estate litigation matters and clarifies a lawyer’s responsibility to produce substantially compliant draft wills and related documents.
This article will summarize Allison, and the extent to which you can expect your estate planning conversation with your lawyer to be protected.
The “Wills Exception”
In Geffen v. Goodman, the Supreme Court of Canada endorsed a “wills exception” which allows disclosure of a client’s estate planning file if allegations are made about the client’s capacity or about undue influence at the time the will was signed. This can be justified if “[t]he interests of the now deceased client are furthered in the sense that the purpose of allowing the evidence to be admitted is precisely to ascertain what her true intentions were.”[3]
Geffen has been used routinely in estate litigation cases to obtain disclosure of a solicitor’s will planning file. Often, that disclosure has been obtained with little or no opposition. In 2017 Justice Myers in Seepa v. Seepa proposed a ‘culture shift’ and pushed back on this practice, writing that “[t]here is something innately offensive about the idea that an excluded relative can simply romp through a testator’s most private legal and health information fishing for evidence on making the most meagre of allegations of impropriety on no real evidence.”[4] Following Seepa, parties must meet “some minimal evidentiary threshold” before disclosure will be ordered.[5]
What kinds of evidence meet this minimal evidentiary threshold remain somewhat unclear. The challenger must, at least, adduce “prima facie evidence of undue influence” or evidence “that actually puts the deceased’s capacity in issue.”[6]
Substantial Compliance
A new threat to privilege emerged when Ontario became a substantial compliance jurisdiction in January of 2022.
Historically, a will that failed to adhere to the formalities of execution set out in the Succession Law Reform Act was not, in fact, a will at all. If only one person witnessed the testator’s signature, then the will was not valid. If the testator did not sign in the presence of two or more attesting witnesses present at the same time, that would also risk invalidity. This changed in January 2022. Now, section 21.1 of Succession Law Reform Act provides that a court may validate an otherwise invalid will if it is satisfied the document sets out the testamentary intentions of the deceased.[7]
This has led to several cases in which the court has been asked to validate otherwise invalid testamentary documents. In Allison the court helpfully summarizes the types of documents that have so far been addressed, and which include: A will that had one witness, but not two;[8] an unsigned codicil;[9] and an unsigned draft version of a will.[10]
If unfinished and draft documents can be validated, many lawyers wondered whether they have an obligation to produce those documents to the potential beneficiaries of their deceased clients. Do they have an obligation to assess whether anything in their file could conceivably represent the fixed and final testamentary intentions of their deceased client?
In Allison, the Applicant asserted that the lawyer for the deceased should produce his entire estate planning file, so that the parties could review the file and determine if anything it contained established a fixed and final testamentary intention.[11]
Justice Myers rejected this argument and forcefully reasserted the importance of privilege in estate planning conversations. He wrote: “Estates conversations about distributions of one’s assets among loved ones are among the most intensely private conversations imaginable that one can have with one’s lawyer. Clients are under an assurance that these conversations are protected and surrounded by the thickest curtain of nearly inviolable lawyer client privilege.”[12]
Accordingly, lawyers should only produce documents if privilege is waived by someone with authority to do so (like the executor of the deceased’s estate) or where a court determines privilege does not apply.[13]
This decision is welcome clarification on the scope of a lawyer’s duty to protect privilege in light of the substantial compliance regime. It should give some comfort to those meeting with a lawyer to discuss their estate plan.
[1] Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821, at p. 839; see also: https://lso.ca/lawyers/practice-supports-and-resources/topics/the-lawyer-client-relationship/solicitor-client-privilege
[2] Allison v. McBride, 2025 ONSC 2828 (CanLII), <https://canlii.ca/t/kc23b>, retrieved on 2025-05-12.
[3] Geffen v. Goodman Estate, 1991 CanLII 69 (SCC), [1991] 2 SCR 353, <https://canlii.ca/t/1fsjz>, retrieved on 2025-05-15
[4] Seepa v. Seepa, 2017 ONSC 5368 (CanLII), <https://canlii.ca/t/h5vd4>at para 28
[5] Seepa v. Seepa, 2017 ONSC 5368 (CanLII), <https://canlii.ca/t/h5vd4>, retrieved on 2025-05-15 see also; Neuberger v. York, 2016 ONCA 191 (CanLII), http://canlii.ca/t/gnmms; Johnson v. Johnson, 2022 ONCA 682 (CanLII), <https://canlii.ca/t/js7lh>
[6] Whitfield v. Glover, 2024 ONSC 1266 (CanLII), <https://canlii.ca/t/k3cz2>
[7] Succession Law Reform Act, R.S.O. 1990, c. S.26
[8] Marsden v. Hunt et al, 2024 ONSC 1711
[9] Allan et al. v. Thunder Bay Regional et a., 2024 ONSC 3260
[10] Hejno v. Hejno – unreported, extension of time to appeal at 2025 ONCA 249; see also Grattan v. Gratten (unreported)
[11] Allison supra note 2 at para 49.
[12] Allision supra note 2 at para 39
[13] Allision supra note 2 at para 54