Digest: Archibald v Archibald, 2018 SKCA 86

DateOctober 18, 2019

Reported as: 2018 SKCA 86

Docket Number: CACV 3052 , CA18085

Court: Court of Appeal

Date: 2019-10-18


  • Jackson
  • Herauf
  • Schwann


  • Civil Procedure � Queen�s Bench Rules, Rule 3-49

Digest: The appellant appealed from a decision of a Queen�s Bench chambers judge dismissing his originating application under Queen�s Bench rule 3-49(1) for an order for the production of documents pertaining to the execution of certain testamentary dispositions. The appellant was the co-executor with his brother, one of the respondents, of his mother�s will, executed in 2009. In it, the testatrix left farmland to the respondent brother with specific bequests to the appellant. The testatrix died in 2015 but the will had not yet been probated. The appellant�s father had died in 1991 and left a holograph will and a printed will. The appellant alleged that he and his mother had entered into a verbal agreement whereby he would not contest the validity of the printed will in exchange for her promise to bequeath the farmland to him. He contended that he and his mother jointly retained the respondent law firm to resolve the matters with respect to that agreement and settling his father�s estate. In his originating application, he requested the production of documents from the law firm based upon those promises. The law firm claimed solicitor-client privilege on behalf of the appellant�s mother. It filed an affidavit from the lawyer who prepared the mother�s will and he attested that she retained the firm in her name only to assist with drafting her will and there had never been a joint retainer between the appellant, his mother and the firm and disclaimed any knowledge of the verbal agreement. Another lawyer who had become responsible for advising the mother in 2009 deposed that he was not aware of any joint retainer agreement and that the mother asked him to keep all communications between them in confidence and not to disclose them to the appellant. The chambers judge found that no retainer agreement existed and that the law firm should not be compelled to produce the documents. The issues on appeal were whether: 1) the appropriate procedure was followed, because originating applications under rule 3-49(1)(a) relate to questions of the administration of estates where an action had been commenced; 2) the chambers judge erred in finding that the joint retainer agreement did not exist; and 3) the law firm should be compelled to...

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