Drafting Attorney May Have to Testify in Trust Dispute

An Ohio appeals court rules that although the surviving wife may exclude privileged testimony from the attorney who drafted trust documents for her deceased husband, the burden is on her to establish that the communications were in fact privileged. Smith v. Smith (Ohio Ct. App., No. C-050787, Dec. 29, 2006). Unpublished.

Following the death of Charles Z. Smith III, his second wife, Suzanne Smith, served as executor of his estate and as successor trustee of a trust he established and that was drafted by attorney Michael Honerlaw. The trust corpus was divided into two separate trusts, a family trust and a marital trust, both of which were designed to pay Mrs. Smith income during her lifetime.

Mrs. Smith filed a complaint for judicial construction and reformation of the trust, asserting that inconsistencies in the trust should be construed to allow her to take trust principal, not merely income. She was opposed by Mr. Smith's children from his first marriage, and they listed attorney Honerlaw as a trial witness. Mrs. Smith filed a motion in limine to exclude the testimony under the attorney-client privilege and refused to waive the privilege in either her capacity as surviving spouse or as successor trustee. The magistrate denied the motion in limine, determining that Mrs. Smith had waived the privilege by filing the lawsuit and placing the challenged communications at issue. Mrs. Smith appealed.

The Ohio Court of Appeals reverses and remands, ruling that the trial court erred by following a judicially-created implied waiver analysis instead of the exclusive statutory methods for waiving the attorney-client privilege. The case is remanded to determine whether the attorney-client privilege had been waived through prior disclosure of confidential information, and on remand Mrs. Smith bears the burden of showing that attorney Honerlaw's expected testimony is in fact covered by the privilege.

To download the full text of this decision in PDF format, go to: https://www.sconet.state.oh.us/rod/newpdf/1/2006/2006-ohio-6975.pdf.
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