The attorney-client privilege and estate disputes in Texas

The attorney-client privilege and estate disputes in Texas

Typically, communications between a client and their attorney are considered privileged.  With a few exceptions, an attorney can not be compelled to disclose the details of the communications.  The purpose of the privilege is to encourage clients to be candid with their attorneys, who are then better able to provide advice and effective representation.

In many of the estate and life insurance beneficiary disputes I handle, primary issues involve the intent and mental capacity of the deceased.  Very often, the attorney who represented the deceased is in position to offer some testimony on those issues.  Texas law provides an exception to the attorney-client privilege in that circumstance.

Texas Rule of Evidence 503(d)(2), sets out the following exception to the privilege:

  As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos  transactions

This exception is typically going to apply in most estate disputes, such as a will or trust contest where competing persons are claiming the rights to a deceased person’s assets. It also typically applies in a dispute over the rightful beneficiary of a life insurance policy.

The Corpus Christi Court of Appeals considered the application of this exception in In re Texas A & M-Corpus Christi Foundation, Inc., 84 S.W.3d 358 (Tex. App.—Corpus Christi 2002) (orig. proceeding).  That case involved a dispute over a decedent’s mental capacity to make an inter vivos gift to a university foundation.   The university sought discovery, including a deposition, from the decedent’s lawyer  regarding communications between him and the decedent.  The decedent’s executor objected on the basis of the attorney-client privilege. The trial court sustained that assertion of privilege.

The court of appeals reversed and granted mandamus. The court of appeals found that a “straightforward application” of TRE 503(d)((3) specifically exempted the communications from the attorney-client privilege.  The court also noted the requested evidence was crucial to the case.

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