Durand Estate, Re, (2015) 320 Man.R.(2d) 141 (QB)

• Judge: Dewar, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: July 30, 2015
• Jurisdiction: Manitoba
• Citations: (2015), 320 Man.R.(2d) 141 (QB);2015 MBQB 132

Durand Estate, Re (2015), 320 Man.R.(2d) 141 (QB)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. AU.010

In The Matter Of: The Estate of Maurice Jean Augustin Durand, of the Town of Notre-Dame-de-Lourdes, in the Province of Manitoba, Deceased;

And In The Matter Of: Maurice Jean Augustin Durand.

Suzanne Marie-Therese Durand (applicant) v. Estate of Maurice Jean Augustin Durand (respondent)

(PR 11-01-89434; 2015 MBQB 132)

Indexed As: Durand Estate, Re

Manitoba Court of Queen's Bench

Winnipeg Centre

Dewar, J.

July 30, 2015.

Summary:

Maurice and Suzanne Durand jointly retained Selby to prepare their wills. They attended at Selby's office together and both executed wills. Maurice died. Two applications arose out of Maurice's will. Bertrand Durand, one of the Durands' sons, who had been named as an alternate executor, applied to remove one of the executors (another son) on the basis of a conflict of interest. Suzanne applied for advice and direction as to the will's interpretation. Bertrand moved for an order compelling Selby to produce notes or documents provided by Maurice that related to the will's preparation and drafting.

The Manitoba Court of Queen's Bench granted the motion.

Barristers and Solicitors - Topic 1648

Relationship with client - Confidential communications - Joint retainer by two or more parties - [See second Evidence - Topic 4245.2 ].

Evidence - Topic 4245.2

Witnesses - Privilege - Lawyer-client communications - Privilege - Wills and trusts - Maurice and Suzanne Durand jointly retained Selby to prepare their wills - They attended at Selby's office together and both executed wills - Maurice died - Two applications arose out of Maurice's will - Bertrand Durand, one of the Durands' sons, who had been named as an alternate executor, applied to remove one of the executors (another son) on the basis of a conflict of interest - Suzanne applied for advice and direction as to the will's interpretation - Bertrand moved for an order compelling Selby to produce notes or documents provided by Maurice that related to the will's preparation and drafting - The executors and Suzanne resisted the motion, asserting that the disclosure would constitute a breach of solicitor and client privilege - The Manitoba Court of Queen's Bench granted the motion - Maurice's intention was not clear on a reading of the will - There was sufficient ambiguity in the will to place the case within the "wills exception" to solicitor and client privilege - Selby's notes were to be disclosed as requested - See paragraphs 13 to 19.

Evidence - Topic 4245.2

Witnesses - Privilege - Lawyer-client communications - Privilege - Wills and trusts - Maurice and Suzanne Durand jointly retained Selby to prepare their wills - They attended at Selby's office together and both executed wills - Maurice died - Two applications arose out of Maurice's will - Bertrand Durand, one of the Durands' sons, who had been named as an alternate executor, applied to remove one of the executors (another son) on the basis of a conflict of interest - Suzanne applied for advice and direction as to the will's interpretation - Bertrand moved for an order compelling Selby to produce notes or documents provided by Maurice that related to the will's preparation and drafting - The executors and Suzanne resisted the motion, asserting that the disclosure would constitute a breach of solicitor and client privilege - The Manitoba Court of Queen's Bench granted the motion - The question was which of two principles prevailed: (1) Suzanne's right as the surviving client in a joint retainer to maintain solicitor and client privilege or (2) Maurice's implicit authorization to permit his beneficiaries access to his solicitor to ensure that the will was interpreted in accordance with Maurice's intentions - The question was answered by looking at Suzanne's intention when she attended with Maurice to give instructions to Selby - Her instructions were an extension of Maurice's instructions - Where segregation of instructions was not possible (as here), the "wills exception" to solicitor and client privilege extended to notes that might encroach on the instructions of the surviving spouse - Both clients to a joint retainer took the risk that, when they provided joint instructions to their lawyer, their solicitor and client privilege might be lost if one of the privileges succumbed to the wills exception - Selby's notes were to be disclosed as requested - See paragraphs 20 to 27.

Evidence - Topic 4247

Witnesses - Privilege - Lawyer-client communications - Loss of privilege - General - [See second Evidence - Topic 4245.2 ].

Practice - Topic 4577.1

Discovery - What documents must be produced - Privileged documents - Solicitor's files, notes, etc. - [See second Evidence - Topic 4245.2 ].

Cases Noticed:

Goodman Estate v. Geffen, [1991] 2 S.C.R. 353; 127 N.R. 241; 125 A.R. 81; 14 W.A.C. 81, appld. [para. 13].

Gordon et al. v. McKay Estate, [1994] B.C.T.C. Uned. B94; 1994 CarswellBC 792 (S.C. Master), dist. [para. 15].

Gordon v. Gilroy - see Gordon et al. v. McKay Estate.

Daily Estate, Re (1996), 116 Man.R.(2d) 2; 1996 CarswellMan 581 (Q.B.), dist. [para. 15].

Daily v. Daily Estate - see Daily Estate, Re.

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380, refd to. [para. 22].

Simcoff v. Simcoff (2009), 245 Man.R.(2d) 7; 466 W.A.C. 7; 2009 MBCA 80, refd to. [para. 22].

Johal v. Billan et al., [1995] B.C.T.C. Uned. F25; [1996] 3 W.W.R. 615; 1995 CarswellBC 1035 (S.C.), dist. [para. 24].

Counsel:

Marcel D. Jodoin, for the moving party, Bertrand Durand;

Gavin M. Wood, for the applicant, Suzanne Marie-Therese Durand;

S. Tristan Smith, for the Executors;

Larry J. Selby, in person (on a watching brief);

Thomas G. Frohlinger, for Romeo Durand (on a watching brief).

This motion was heard by Dewar, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on July 30, 2015.