Digest: Figley v Figley Estate, 2018 SKQB 102

• Date: April 02, 2018

Reported as: 2018 SKQB 102

Docket Number: QBS 621/07 JCS , QB17501

Court: Court of Queen's Bench

Date: 2018-04-02

Judges:

• Mills

Subjects:

• Wills and Estates � Solicitor-Client Privilege Civil Procedure � Queen�s Bench Rules, Rule 5-15, Rule 5-20

Digest: The plaintiff, the executor of the estate of Ray Figley, had been ordered to prove the deceased�s will in solemn form in 2007. The defendants opposed the plaintiff�s assertion that the will and codicil, both dated 2007, were valid testamentary documents. The proof in solemn form was to determine whether the deceased had testamentary capacity and whether he had been subject to undue influence when he executed his will and codicil. The defendant applied pursuant to Queen�s Bench rule 5-20 to examine under oath the lawyer who had prepared the contested will, a non-party to the action and for an order that he produce documents under rule 5-15. The lawyer argued that the application should be dismissed because the defendant applicant had not complied with rule 5-20 as he had failed to satisfy preconditions for questioning and solicitor-client privilege prohibited both questioning and production of documents under rule 5-15. HELD: The application was allowed in part. With respect to the application pertaining to rule 5-20, the court found that as the plaintiff had been questioned in 2009, the defendants had had the opportunity then to question the plaintiff in his capacity as the purported executor of the estate and the person advancing the validity of the will, but had not done so. Therefore, the application failed because the defendant had not satisfied the preconditions set out in Queen�s Bench rule 5-20(3)(a). The court granted the application for production of documents because of the �wills exception� to solicitor-client privilege. The documents held in the lawyer�s file were not protected by privilege as they...