The Court of Appeals recently took the “opportunity to more clearly illustrate when and how” the testamentary exception to the attorney-client privilege applies. Zook v. Pesce, 438 Md. 232, 91 A.3d 1114 (05/16/14).

In that case, the decedent, Mr. Zook, left his 3 children equal one-third shares of the property in his “living” trust. Two of the children received their inheritance outright but the third, Mary, was effectively left her third as a 10-year annuity. Mary sued to overturn the revocable trust based, in part, on duress/undue influence.

A year before Mr. Zook executed the revocable trust in effect at his death, he executed a different revocable trust. Mary sought a copy of the earlier trust on the theory that a change of an earlier, established estate plan is one element tending to show undue influence. (One of the Moore v. Smith, 321 Md. 347, 582 A.2d 1237 (1990) factors.) The Circuit court refused to permit discovery about the earlier plan based on attorney-client privilege (which the personal representative refused to waive.) The Court of Appeals held that the testamentary exception applies, making the earlier estate planning fair game:

“As evidenced by this Court’s holding in Benzinger (in 1919), the testamentary exception has existed in Maryland for close to a century, despite never having been formally named. Nonetheless, it has been some time since this Court has spoken on the testamentary exception. For this reason, we reaffirm that in a dispute between putative heirs or devisees under a will or trust, the attorney-client privilege does not bar admission of testimony and evidence regarding communication between the decedent and any attorneys involved in the creation of the instrument, provide that evidence or testimony tends to help clarify the donative intent of the decedent.”

Zook is destined to become the “go to” ruling on the testamentary exception to the attorney-client privilege in Maryland. [Ironically, the Court held that the Circuit Court’s ruling was harmless error so the result did not change.] Already the Court of Special Appeals applied Zook to permit access to a prior will in a will caveat case.   Green v. McClintock, 2014 WL 3778327 (08/01/14).

This reaffirmation of Benzinger will become more important after the first of the year once the Maryland Trust Act (“MTA”) becomes effective. One MTA provision permits extrinsic evidence to modify a trust, even if unambiguous, to more fully conform to settlor intent. MTA § 14.5-413. One obvious (and discoverable) source of such intent will be found in the contents of the drafting attorney’s files.