In re Estate of Lewis

49 Va. Cir. 347, 1999 Va. Cir. LEXIS 336

• Court: King George County Circuit Court
• Decided: July 16, 1999
• Docket: Case No. 99-37
• Status: Published

Opinion

By Judge James W. Halley, Jr.

In this will contest, the issue for resolution is whether the lawyer-client privilege terminates upon the death of the purported testator where the lawyer-client relationship between the testator and die attorney remained in existence at the tíme of die death of the testator.

On December 16,1998, a writing dated October 23,1998, was admitted to probate in the Circuit Court of King George County as the last will and testament of Elizabeth C. Lewis. As authorized by Code § 64.1-78, interested parties appealed the admission to probate to the Circuit Court. The appellants seek a subpoena duces tecum for relevant papers from, and the testimony of, Joseph A. Billingsley, Jr., Esquire, who represented Elizabeth C. Lewis. Mr. Billingsley has prudently resisted the subpoena duces tecum and the request for testimony by raising the attorney-client privilege, and, in conjunction with counsel for die appellants, has asked the court to rule upon the matter. Counsel for Mr. Billingsley has stipulated that the attorney-client relationship existed at the time of Ms. Lewis’ death.

In Hugo v. Clark, 125 Va. 126, 99 S.E. 521 (1919), complainants maintained die existence of a will executed subsequent to that which had been offered for probate. The trial court prohibited counsel from testifying as to the contents of the latter paper upon the invocation of the lawyer-client privilege. In reversing, the court stated:

After the death of the client, however, it has been held that the privilege may be waived when the character and reputation of the deceased are not involved, by his executor or administrator, or in will contests by Ms heirs or legatees. The deceased no longer has any interest in the matter.

Hugo, supra, 125 Va. at 129-30, 99 S.E. at 522.

TMs rule apparently remains the law in Virgima. In Eason v. Eason, 203 Va. 246, 254, 123 S.E.2d 361, 365 (1962), the court cited Hugo and noted that:

We have previously held that an attorney, who has participated in the preparation and execution of what is alleged to be a last will, may be permitted to testify concerning Ms transactions with the testator in conjunction therewith.

Eason, supra, 203 Va. at 254, 123 S.E.2d at 365.

In Pace v. Richmond, 231 Va. 216, 218, 343 S.E.2d 59, 61 (1986), the question involved a claim of undue influence in the execution of a will and the testimony of the attorney who prepared the will was received without objection in the trial court and recited without comment in the Supreme Court opimon.

Finally, a commentator writes: “When the client is deceased, and litigation arises between persons who all claim under the deceased, the attorney may testify as to conversations with the deceased client.” Charles E. Friend, The Law of Evidence in Virginia, § 7-3, p. 248, n. 14 (3d ed. 1993).

In light of the foregoing, the motion to quash the subpoena duces tecum is denied and counsel may inquire of Mr. Billingsley, the client-privilege having ceased with the death of Ms. Lewis.¹

1 The stipulation that the lawyer-client relationship existed at the time of the death of Ms. Lewis is of importance. In Eason, supra, the court stated: “We have not, however, had presented to us the question of whether an attorney, whose relationship with the testator has terminated may testify to the matters sought to be introduced by the contestants. This question apparently remains open in Virginia.” [Emphasis supplied.]