Property disputes and will challenges are often centred around determining the intention of a person who is now deceased or who has become incapacitated due to a medical condition such as dementia. For example, in Sales v. Fisher, 2019 BCSC 1050, litigation was commenced to determine the intent behind a transfer of title to property made by a woman named Ms. Sales, who due to dementia, was no longer able to explain what she intended when she added her daughter to title to the property several years earlier. Ms. Sales’ son, in his capacity as her attorney and litigation guardian, brought a petition for a declaration that his mother was the sole beneficial owner of the property. An interesting issue with respect to disclosure of an estate planning lawyer’s privileged file arose in the context of that litigation.
Gratuitous transfer of title to property
The property in question, located in Coquitlam, BC, was held by Ms. Sales and her husband as joint tenants from 1956 until 2008. In 2008, Ms. Sales and her husband retained a Vancouver estate lawyer for estate planning work. Subsequently, they added their daughter to title to the property as a joint tenant. The daughter provided no consideration for the transfer, did not live at the property, and paid no expenses for the property.
Power of Attorney prepared by Vancouver estate lawyer
In 2016, Ms. Sales retained the same Vancouver estate lawyer who had done the earlier estate planning work to prepare an Enduring Power of Attorney. The Power of Attorney appointing Ms. Sales’ son as attorney was signed in the presence of the Vancouver estate lawyer. The Enduring Power of Attorney authorized Ms. Sales’ attorney to make decisions on her behalf and do anything that she may lawfully do by an agent in relation to her “Financial Affairs” as defined in the Power of Attorney Act, which was specified in the document to include conduct of Ms. Sales’ legal affairs.
Daughter refuses to relinquish title to property
Ms. Sales’ husband passed away later in 2016. In 2017, title to the property was transferred to Ms. Sales and her daughter as surviving tenants. Later in 2017, Ms. Sales demanded that her daughter relinquish her title to the property. The daughter refused to transfer the property’s title back to her mother, and the litigation was commenced to determine ownership of the property. By this time, Ms. Sales was under legal disability due to dementia.
Request for disclosure of the Vancouver estate lawyer’s file
The materials in Vancouver estate lawyer’s file were expected to contain discussions regarding Ms. Sales’ intention behind the 2008 property transfer. The son, acting as his mother’s attorney and litigation guardian, requested disclosure of relevant materials from the file of the Vancouver estate lawyer. The lawyer refused to disclose her file, citing solicitor-client privilege in relation to the documents and communications it contained.
Court orders disclosure of Vancouver estate lawyer’s file
The court ordered the release of all documents arising from the Vancouver estate lawyer’s representation, including but not limited to email, attachments, letters enclosures, faxes, memoranda and notes relating to or arising from the representation, all in complete and unredacted form. The court also ordered that the Vancouver estate lawyer be at liberty to communicate concerning her representation of Ms. Sales with Ms. Sales’ son and with the lawyer acting for Ms. Sales’ son in relation to the petition for a declaration that Ms. Sales is the sole beneficial owner of the property.
Not a breach of solicitor-client privilege due to the Power of Attorney
The court made a further declaration that solicitor-client privilege arising from the representation as between the Vancouver estate lawyer and Ms. Sales and her husband remained in form notwithstanding the order for production of the lawyer’s file and the order that the Vancouver estate lawyer communicate with Ms. Sales’ son in his capacity as her attorney. The court further declared that the son, in his capacity as attorney for Ms. Sales, has the authority to waive any privilege that could have been waived by Ms. Sales if she had capacity to do so, if he reasonably determines that such waiver is in Ms. Sales’ best interests. The court noted that it would be hard to find clearer consent than was given by Ms. Sales to her son in her Enduring Power of Attorney, which was drafted by the Vancouver estate lawyer from whom the disclosure was sought.
Take home point
The estate planning file produced in the Sales matter would almost certainly assist in determining the intention behind the gratuitous property transfer. The outcome of the disclosure application in Sales turned on the operation of the Power of Attorney. If you are embroiled in estate litigation or a BC property dispute relating to the intention of a deceased person or person under a legal disability, it is essential to consider all avenues for obtaining evidence to substantiate intention. We recommend consulting with one of our experienced litigators to discuss the unique facts and potential options for obtaining evidence in your case.
