Court found that there was an express waiver of privilege over the amounts of legal fees expended
The BC Court of Appeal has ruled that an executor must provide detailed estate accountings, including legal invoices, but specific legal advice within those invoices remains protected by solicitor-client privilege.
In Barbieri v. White, 2024 BCCA 225, the appellant, the executor of the deceased's estate, sought several orders from the court to protect documents he claimed were privileged. These included invoices from his solicitors and other related documents. The respondent, a beneficiary of the estate, applied to introduce fresh evidence on appeal, specifically an affidavit from her counsel's legal assistant.
The central issue of the appeal was the scope of solicitor-client privilege in the context of the executor-beneficiary relationship and whether that privilege had been waived.
The deceased left a will executed in 2017, naming the appellant and respondent as co-executors. However, disputes arose, with the appellant alleging the respondent misappropriated estate assets. This led to the appellant seeking the respondent's removal as executor, which was achieved through a consent order in 2019. This order required the appellant to provide bi-monthly accountings of the estate, which later included privileged legal invoices inadvertently disclosed.
The chambers judge dismissed the appellant’s application to declare the documents privileged and prevent their use by the respondent. The judge found that solicitor-client privilege was waived by the consent order, which required the appellant to provide complete estate accountings.
The judge also dismissed the application to disqualify the respondent's lawyers, stating the inadvertent disclosure of privileged documents over a lengthy period did not warrant such a remedy. She emphasized that the appellant and his lawyers had opportunities to correct the ongoing disclosure but failed to do so.
On appeal, the BC Court of Appeal allowed the appeal to a limited extent, modifying the order to assert that solicitor-client privilege could be claimed over specific legal advice contained in the disclosed invoices. However, the court upheld the judge’s decision that the overall disclosure of the invoices and related financial documents did not retain privilege due to the explicit terms of the consent order.
The court found the judge correctly identified and applied the legal test for waiver of privilege, noting that the appellant had agreed to the consent order, which included providing detailed estate accountings. This agreement constituted an express waiver of privilege over the amounts of legal fees expended.
The appeal court emphasized that moving forward, the appellant must continue to provide detailed estate accountings, including legal invoices, but allowed for the redaction of specific legal advice contained within those invoices. The court also dismissed the fresh evidence application and did not make any order regarding the disqualification of the respondent’s lawyers.
