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Attorneys – Privilege – Testamentary Exception – Prior Will – Trusts & Estates – Statute of Limitations

Falls v. Goldman Sachs Trust Co., N.A. (Lawyers Weekly No. 002-022-17, 24 pp.) (Louise Flanagan, J.) 5:16-cv-00740; E.D.N.C.

Holding: After the decedent executed a will and trust drafted by attorney John Hine, the decedent executed another will drafted by a different attorney. The testamentary exception to the attorney-client privilege nevertheless applies to matters relating to the will and trust drafted by attorney Hine.

The court denies Hines’ motion to quash subpoenas. The court grants defendant Goldman Sachs’ motion to dismiss plaintiff’s claim for breach of lease.

Testamentary Exception

In a suit between devisees under a will, statements made by the deceased to counsel respecting the execution of the will, or other similar document, are not privileged.

This litigation is ongoing after the client’s (decedent’s) death, among parties all of whom claim under the client. The controversy is to determine who shall take by succession the property of decedent, and all parties claim under him. Accordingly, neither can set up a claim of privilege against the other as regards the communications of decedent with Hine.

Hine asserts that it is unclear how the testamentary exception would apply to an attorney who was terminated and did not draft the final dispositive estate planning documents. As an initial matter, Hine’s assertion presumes too much of the facts, where one of the disputed issues in this case is which document or documents are the final dispositive estate planning documents.

In addition, case law describing and applying the testamentary exception does not limit the rule to disclosure of communications only with the attorney who drafted the latest purported will or other estate planning documents, The rule applies, instead, more broadly to litigation, after the client’s death, between parties, all of whom claim under the client. The testamentary exception reasonably encompasses circumstances, as here, where the parties to litigation lay claim to a portion of decedent’s assets on the basis of wills or other similar estate documents executed by decedent.

Hine also asserts that it is unclear whether the testamentary exception extends to contests over drafting a trust and other related documents. However, one of the cases Hine cites, Glover v. Patten, 165 U.S. 394 (1897), applied the testamentary exception, not only to communications regarding the drafting of a will, but also to trust documents.

In sum, the testamentary exception applies in this case to permit disclosure to the parties of privileged communications between decedent and Hine concerning wills and other estate documents relevant in this matter. Hine’s motions to quash are denied.

Statute of Limitations

Before decedent became romantically involved with defendant Diane Sellers, he transferred his home to plaintiff and agreed to pay plaintiff rent. Decedent never paid the rent, nor did the defendant-executor. Plaintiff filed his action for breach of lease more than six months after the executor denied his claim for back rent. Therefore, plaintiff’s action is time-barred.

In related litigation in this court, plaintiff filed a counterclaim for back rent six weeks after the executor denied his claim. However, that action was remanded to state court and, upon motion by plaintiff, was dismissed for lack of subject matter jurisdiction.

Commencement of a prior action dismissed for lack of subject matter jurisdiction does not serve to toll the running of the statute of limitations in G.S. § 28A-19-16 unless the dismissal order specifies an extension of the limitations period.

Plaintiff’s breach of lease claim must be dismissed as time-barred.

Motions granted in part and denied in part.


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