In the Context of a Capacity Challenge, the Court of Chancery Allows Discovery into the Trustor’s Communications with her Estate Planning Attorney Occurring Months Prior to the Execution at Issue

IMO:  The Estate of James Vincent Tigani, Jr., et al. , C.A. No. 7339-ML (March 20, 2013).

In the context of what had become a capacity challenge, in response to an interrogatory, the trustor identified her estate planning attorney—who had witnessed the signing of the instrument—as someone whom she intended to call to testify to support her capacity.  The trustor also asserted the attorney-client privilege as to estate planning communications with her attorney occurring months before the instrument was executed.

The Court of Chancery, per Master LeGrow, ruled that although DRE 502(d)(2) does not apply when the trustor is living, the trustor effectively waived the attorney-client privilege.  In supporting its ruling, the Court relied upon Pfizer Inc. and stated that the trustor was using the privilege as both a sword and a shield.