If people are litigating over whether a transfer by a person who is now deceased is valid, the decedent’s estate planning files at the attorney’s office is probably discoverable in the litigation. On December 6, 2013, the New Hampshire Supreme Court in the case of Stephen Stompor found as such. The relevant facts of the case were as follows. Stan Stompor, the brother of Stephen Stompor, challenged certain transfers made to his brother Stephen Stompor by his parents claiming that he has exercised undue influence over the parents when the lacked capacity to understand the estate planning documents that gave Stephen exclusive inheritance rights to the parents’ assets to the exclusion of the parents’ other children. In that litigation, Stan Stompor sought disclosure from the parents’ estate planning attorney as to any information he had regarding his contact with the parents in conjunction with the challenged 2004 estate plan and Stephen objected to that disclosure claiming that the attorney / client privilege prohibited disclosure of any documents that the parents’ estate planning attorney had relating to consultations with the parents. Ultimately the Supreme Court, citing prior legal precedent from that Court and the applicable Rule of Evidence, ruled that the attorney’s file was discoverable by both Stanley and Stephen Stompor in the litigation. The Court, after having reviewed the file itself agreed with the Probate Judge that the file was relevant to the issues between the two brothers. The Court noted that the attorney / client privilege is to protect the client to ensure full disclosure by the client to his attorney yet it is presumed that a dead client’s interest is best served by discovering his true intent in giving away his assets when he dies and all relevant evidence that will aid in the determination of his true intentions including his estate planning notes and/or drafts of documents or executed documents in his attorney’s estate planning file are important so that the truth of his intentions will be uncovered.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].