Tuesday, August 20, 2019

Legal privilege (on privilege)** and estate planning

Often one of the most important aspects of advice provided by lawyers is the ability for that advice to remain private and confidential to the client on the basis of legal professional privilege.

Particularly in relation to tax planning and asset protection, the ability to maintain confidentiality can often be very important and the case of Nolan v Nolan [2013] QSC140 is an important example of this principle. As usual, if you would like a copy of the decision please contact me.

In summary, the situation in this case was as follows:
  1. a wife and husband had been married for some years;
  2. following a breakdown in their relationship, the wife claimed an interest in the farming property of the husband's parents;
  3. because the husband's parents were still alive, the wife tried to gain access to their estate planning documentation; and
  4. the parents of the husband sought to deny access to the documents on the basis of legal professional privilege.
In deciding the case, the court confirmed:
  1. the dominant purpose for the creation of various estate planning documents including letters of advice and handwritten notes, both by the estate planning lawyer and the parents, was to obtain legal advice;
  2. on this basis, legal professional privilege could apply to deny the wife the ability to access the documents; 
  3. unfortunately, because the lawyers for the parents did not raise the issue of privilege until after the relevant documents had been disclosed, the court held that notwithstanding the documents could have otherwise retained their confidentiality, the disclosure of them had waived the protection of privilege; and
  4. importantly, it was also confirmed that it is not necessarily automatically the case that wills and related files are protected by legal professional privilege.
** For the trainspotters, ‘privilege on privilege’ is a line from one of my favourite privilege related songs, from the Church and their 1986 album Heyday, namely ‘Myrrh’.