Opinion
358578.
January 26, 2011.
In this probate proceeding, respondents Michael Axinn and Jennifer Axinn-Weiss moved to compel the preliminary executors of the estate, Joan Axinn, the surviving spouse of the decedent, and Kenneth Katzman, the decedent's accountant, to produce: (i) un-redacted photocopies of two letters between the decedent and the attorney-draftsman, Jonathan Mate, Esq., and (ii) un-redacted photocopies of notes taken by Mr. Mate during two separate in-person meetings with the decedent on December 5, 2008 and January 30, 2009. The preliminary executors cross-moved for a protective order. For the reasons that follow, the motion to compel is granted and the cross-motion for a protective order is denied.
This court issued a decision dated September 30, 2010 (Dec. No. 26567) directing the preliminary executors to provide un-redacted copies of the notes of the December 5, 2008 meeting since the presence of third parties at the meeting indicated that the communications at this meeting were not confidential. As to the other documents, the court ordered the preliminary executors to submit them in un-redacted form for an in camera review. A final determination on the motion to compel was held in abeyance pending the in camera review.
Pursuant to the court's decision, the preliminary executors have submitted the following documents for an in camera review:
(1) Correspondence dated December 19, 2006;
(2) Correspondence dated January 29, 2009; and
(3) Attorney Notes dated January 30, 2009.
By stipulation dated October 29, 2010, the parties also agreed that the agreement dated February 4, 2009 between the decedent and Joan Axinn would be submitted to the court for an in camera review.
The preliminary executors contend that Mr. Mate represented both the decedent and the decedent's surviving spouse, Joan Axinn, in connection with their estate plans. According to them, Mr. Mate had confidential communications with the decedent and Joan, jointly and individually, concerning Joan's estate plan and assets. They contend that the contents of those communications concerning Joan's estate plan and assets are privileged pursuant to the attorney-client privilege afforded by CPLR 4503. As a result, the preliminary executors claim that these communications are not discoverable by third parties. Mr. Mate has submitted an affirmation in support of the claims made by the preliminary executors.
The attorney-client privilege seeks to ensure that one seeking legal advice will be able to confide fully and freely in his attorney, secure in the knowledge that his or her confidences will not later be exposed to his or her legal detriment ( Priest v Hennessy, 51 NY2d 62). The attorney-client privilege has been codified under CPLR 4503 (a) (1), which bars disclosure of any confidential communications between a client and his/her attorney. The attorney-client privilege is "of the oldest among common law evidentiary privileges, fostering the open dialogue between lawyer and client that is deemed essential to effective representation" ( Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371). Nevertheless, in actions involving the probate, validity or construction of a will, an attorney or his employee is required to disclose information as to the preparation, execution or revocation of any will or other relevant instrument, but he shall not be allowed to disclose any communication privileged under subdivision (a) which would tend to disgrace the memory of the decedent (CPLR 4503 [b]).
Here, the preliminary executors assert that the communications are privileged because they concern Joan's estate plan. The preliminary executors argue that the contents of a will of a living person are privileged ( Matter of Johnson, 127 Misc 2d 1048 [Sur Ct, New York County 1985] [granting protective order denying discovery as to existence and contents of will of decedent's surviving spouse on grounds of attorney-client privilege]). The contents of the will of a living person remain ambulatory and, thus, the revocable nature of a living person's will makes it of little relevance in most proceedings ( Matter of Freilich, 179 Misc 2d 884 [Sur Ct, Bronx County 1999]). In Matter of Freilich, however, the court allowed limited disclosure of the decedent's sister's will for purposes of showing undue influence. The preliminary executors rely on Matter of Othmer (NYLJ, Dec. 20, 1996, at 33, col 6 [Sur Ct, Kings County]), which involved a motion to compel in a miscellaneous proceeding to determine the validity of the surviving spouse's right of election. In Matter of Othmer, the charitable beneficiaries moved for an order compelling the attorney-draftsman to produce wills and other estate planning documents executed by the surviving spouse. During their lifetimes, the decedent and his spouse had jointly consulted with an attorney about their testamentary plans. The court noted that the contents of the spouse's prior wills and related documents were tangential to the central question, which was the validity of the exercise of her right of election. Accordingly, the court denied the motion to compel.
Respondents argue that the correspondence and notes are discoverable and rely on this court's decision in Matter of Newton ( 62 Misc 2d 553 [Sur Ct, Nassau County 1970]), which involved an accounting proceeding. The decedent's widow in that case argued that the personal property that the fiduciaries claimed she received under the decedent's will either belonged to her or was given to her by the decedent during his lifetime and, therefore, should not be deducted for purposes of calculating the amount to fund the trust for her benefit. The fiduciaries sought production of the widow's will and two codicils. The widow moved for a protective order. This court held as follows:
"As to the widow's contention that the instruments deal with privileged matter between her and her attorney, the court finds that the subject matter by its very nature was not confidential and was to be disclosed to the decedent in that the decedent and his wife both submitted information to the attorney to prepare wills for each of them; that the husband supplied some of the information to the attorney on behalf of his wife and there are some mutual provisions under the widow's will and the will simultaneously executed by the decedent. While they are not mutual wills, they nonetheless were prepared simultaneously by the same attorney, and executed in the presence of the same witnesses and are of such a nature as to foreclose any claim that the information was privileged.
The court is very conscious of the fact that the contents of a person's will should not be readily discoverable by third parties and should be confidential. However, the controversy herein is not between the decedent's widow and a third person, but between the widow and her husband's estate." ( Matter of Newton, 62 Misc 2d 553, 554 [Sur Ct, Nassau County 1970]).
Moreover, regarding the issue of joint representation, it has been held that where two or more persons consult an attorney for their mutual benefit, the attorney-client privilege cannot be invoked in any litigation between such persons or their descendants, but rather may be invoked in any litigation between them and third parties ( Matter of Swantee, 90 Misc 2d 519, 522 [Sur Ct, New York County 1977]; Wallace v Wallace, 216 NY 28).
Here, the starting point for the court's analysis is the February 4, 2009 agreement which the parties agreed, by stipulation, to submit to the court for in camera inspection in addition to the documents ordered to be submitted by the September 30, 2010 decision. This agreement makes it clear that Donald and Joan obligated themselves to certain provisions regarding a joint estate plan. Pursuant to the terms of that agreement, Donald and Joan agreed to include certain provisions in their respective wills. The agreement further provides that it "shall inure to the benefit of and shall be binding upon the heirs, executors and administrators of the parties." The February 4, 2009 agreement, it appears, replaced prior agreements between Donald and Joan regarding their estate plans. By virtue of the agreement and the fact that Donald and Joan's heirs are bound by the terms of the agreement, Joan could not have had a reasonable expectation of privacy concerning the documents at issue. The reasonableness of Joan's expectation is belied by the fact that she was a party to an agreement which bound her to effectuate a joint testamentary plan with the decedent.
In addition, both the December 19, 2006 and January 29, 2009 correspondence are addressed solely to Donald. Both letters also begin "[t]he following is a summary of your estate plan" (emphasis added). In addition, both letters, although dated before the February 4, 2009 agreement, refer to the "provisions of the agreement entered into between you and Joan." The notes from January 30, 2009 similarly reflect the existence of the agreement. Mr. Mate's notes include a direction to "amend Agreement with Don Joan." Thus, their agreement concerning a joint estate plan had been in place at the time of the correspondence and meeting.
The court also notes that the cases cited by the preliminary executors are unavailing. Here, the respondents are not seeking the production of Joan's will. Rather, the respondents are seeking un-redacted copies of two letters addressed solely to the decedent regarding his and Joan's estate plans and notes from a meeting at which the agreement as well as both of their estate plans were discussed. Moreover, the preliminary executors' reliance on Matter of Othmer (NYLJ, Dec. 20, 1996 at 33, col 6 [Sur Ct, Kings County]) is equally misplaced as that was a proceeding to determine the validity of the surviving spouse's right of election, not a probate proceeding.
Accordingly, un-redacted copies of the (i) correspondence dated December 19, 2006; (ii) correspondence dated January 29, 2009; (iii) attorney notes dated January 30, 2009; and (iv) the February 4, 2009 Agreement are to be provided to respondent within twenty (20) days of the date of this decision.
This is the decision and order of the court.
Proceed accordingly.