The testator allegedly lacked capacity and her husband exerted undue influence over her
The BC Supreme Court has granted the administrators access to the estate planning file for the deceased amid allegations of undue influence and lack of capacity in executing a will and transferring property.
In Novak v. Seemann, 2023 BCSC 1784, Kevin Novak challenged the validity of his later mother's will and a property transfer several months before her death, alleging that she did not have the necessary capacity or was subjected to undue influence.
Kevin's mother, Rosa Angela Novak, died in 2020, leaving a will. She is survived by her spouse, Eric Seemann, and three children—Kevin, Erik, and Peter Novak. The deceased was the registered property owner in Old Cariboo (OC) Highway, Prince George. Seeman claimed that the OC property was his and Rosa's family residence for over 20 years.
In 2018, Rosa was diagnosed with cancer, which had spread to her lungs, liver and brain. Kevin alleged that by January 2020, her health had deteriorated rapidly, and she had displayed symptoms of mental decline. Kevin claimed that her mother had begun making "drastic changes" to her testamentary estate planning in late January.
Seeman denied that Rosa's health was deteriorating at that time. He argued that she was still well enough to host family dinners, babysit grandchildren and travel abroad.
In 2020, shortly before her death, Rosa transferred the title of the OC property to herself and her husband, Eric Seemann, as joint tenants. The transfer included a right of survivorship. The deceased also executed a will naming Kevin, Eric, and Peter as co-executors and co-trustees.
When Rosa died, her interest in the OC property passed to Seemann by right of survivorship. Kevin renounced his executorship under the will and filed an action in court, disputing the validity of the transfer and his mother's will on the ground that she did not have the necessary capacity to transfer her property or to execute the will. Alternatively, Eric argued that Seeman exerted undue influence over the deceased.
Kevin's brothers, Erik and Peter, were appointed as estate administrators. They sought an order from the court directing the son of their mother's longtime solicitor, Trevor Dungate, to deliver a copy of the complete estate planning file for the deceased. He had acted for the deceased concerning corporate matters, the transfer of the OC property, and the will.
The administrators contended that the contents of Dungate's estate planning file are directly relevant to the deceased's testamentary capacity and the presence or absence of undue influence. As administrators, Peter and Erik asserted that they have the legal authority to access and demand the production of privileged documents.
The BC Supreme Court noted that the order appointing Peter and Erik as estate administrators stated that they have all of the rights, powers, and duties of a personal representative, other than the right to distribute the deceased's estate.
Furthermore, the court, citing case law, said that the executor has the authority to waive the solicitor-client privilege belonging to the deceased. The court highlighted the principle that the executor had conclusively proven her authority by obtaining probate of the will.
The court noted that Peter and Erik sought the documents because they were directly relevant to the deceased's testamentary capacity, the presence or absence of undue influence and her vulnerability concerning the transfer and, preparation and execution of the will. The court found that the documents were sought to advance document discovery in Kevin's action, not to assist with some aspect of the administration of the deceased's estate.
Accordingly, the court concluded that Peter and Erik's authority as administrators pending litigation did not include the authority to access privileged documents of the deceased, which were not required for them to carry out their duties as administrators, nor did it include the authority to waive privilege over such documents.
Nonetheless, the administrators advanced the argument of "wills exception" to solicitor-client privilege, which provides that solicitor-client privilege is displaced on public policy grounds to determine whether the testator was subjected to undue influence in the making of her will, or to decide on her true intentions and whether she possesses the testamentary capacity at the execution of her will.
The court acknowledged that the wills exception had been expanded to include analogous transactions, including producing an estate planning file where the deceased had transferred property before her death.
Ultimately, the court found that the documents related to the OC property transfer and Rosa Novak's will fell within the "wills exception." The court was satisfied that the transfer was done as part of the deceased's broader estate planning, and as such, it was an analogous transaction for applying the wills exception. Accordingly, the court ordered Dungate to deliver to counsel for the administrators a certified copy of his complete estate planning file for the deceased, Rosa Novak.
