The Connecticut Supreme Court rules that in a will contest, testamentary communications between a decedent and an attorney who did not ultimately draft the executed will may not be disclosed. Gould, Larson, Bennet, Wells and McDonnell, P.C. v. Panico (Conn., SC 17279, April 12, 2005).
In February 1993, Edward Panico executed a will drafted by the law firm of Gould, Larson, Bennet, Wells and McDonnell, P.C. In 2002, Mr. Panico was suffering from a terminal illness and contacted the Gould firm regarding further will and estate consultations. Helen B. Bennet, then an associate with the firm, met privately with Mr. Panico at his home, but no will ultimately was prepared or executed. Two weeks later, Mr. Panico executed a will drafted by a New York attorney not affiliated with Attorney Bennet's firm. Following Mr. Panico's death, a dispute developed between his heirs over whether his last will was the result of undue influence. In the course of the probate proceedings, the Gould firm and Attorney Bennet were subpoenaed to disclose the files concerning their consultations with Mr. Panico and to have Attorney Bennet testify about her discussions with the decedent.
The law firm resisted, claiming that the communications with Mr. Panico were protected by the attorney-client privilege. The probate court disagreed, concluding that the communications fell within the exception to the attorney-client privilege that allows disclosure of transactions between an attorney and his client leading up to the execution of a will. The trial court reversed, finding that the exception to the attorney-client privilege was limited to communications between a decedent and the attorney who actually drafted the instruments ultimately executed by the decedent. One of Mr. Panico's heirs appealed.
The Supreme Court of Connecticut affirms, ruling that "when the communications between a decedent and his attorney do not result in an executed will, the communications do not fall within the exception to the attorney-client privilege and thus are confidential." The court holds that only in the case of an executed will can the inference be made that a decedent intended to waive the attorney-client privilege in order to effectuate his testamentary intent. In the absence of a will, the burden falls on the party seeking disclosure to prove a reason sufficiently compelling to depart from the presumption of confidentiality, something the heir failed to do, the court rules.
To download the full text of this decision in PDF format, go to: https://www.jud.state.ct.us/external/supapp/Cases/AROcr/CR273/273CR51.pdf.
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