A loved one dies, you find out you are disinherited, and you are left to wonder: what happened before he died that caused a drastic change in his Trust or Will?  The one person who could tell you the answer to that question is gone, so it’s now up to you to find the answer from a variety of sources, including the attorney who drafted the Trust or Will.

The problem is that many attorneys will claim the Attorney-Client Privilege applies to their conversation with the decedent and refuse to divulge the information you need for your Trust or Will lawsuit.

That’s where the California Evidence Code steps in to help you obtain the answers you need to know.  Using the following four Evidence Code sections you can get all the information you need to figure out what went wrong with your inheritance:

1.  Evidence Code 957

What the law says:

There is no privilege under this article as to a communication relevant to an issue between parties all of whom claim through a deceased client, regardless of whether the claims are by testate or intestate succession, nonprobate transfer, or inter vivos transaction.

What it means:

If you are claiming a right through a deceased person, you have the right to question the drafting attorney and the Attorney-Client Privilege does not apply.  This is true whether you are questioning a Will, and Trust, or any other type of at-death transfer device.

2.  Evidence Code 959

What the law says:

There is no privilege under this article as to a communication relevant to an issue concerning the intention or competence of a client executing an attested document of which the lawyer is an attesting witness, or concerning the execution or attestation of such a document.

What it means:

Where a lawyer has witnessed a Will, or knows of the intent and possible competency of a client, then you are entitled to ask questions about the lawyer’s knowledge of that intent or competency.  If you look at most Wills, it specifically states in the witness section that the witnesses are attesting to the fact that the decedent did not lack capacity.  When a lawyer signs something like this, it stands to reason that they should answer questions about it and cannot hide behind the Attorney-Client Privilege.

3.  Evidence Code Section 960

What the law says:

There is no privilege under this article as to a communication relevant to an issue concerning the intention of a client, now deceased, with respect to a deed of conveyance, will, or other writing, executed by the client, purporting to affect an interest in property.

What it means:

Where an attorney and a client discuss the client’s intentions in transferring property, there is no Attorney-Client Privilege covering that conversation once the client is deceased.  Again, the law wants to get to the bottom of the client’s intent and so the law cares out an exception to the Attorney-Client Privilege to do so.

4.  Evidence Code Section 1260

What the law says:

(a) Except as provided in subdivision (b), evidence of any of the following statements made by a declarant who is unavailable as a witness is not made inadmissible by the hearsay rule:

(1) That the declarant has or has not made a will or established or amended a revocable trust.

(2) That the declarant has or has not revoked his or her will, revocable trust, or an amendment to a revocable trust.

(3) That identifies the declarant’s will, revocable trust, or an amendment to a revocable trust.

(b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances that indicate its lack of trustworthiness.

What it means:

This is not an exception to the Attorney-Client Privilege, but rather an exception to the hearsay rule that allows a decedent’s statements to be admitted into evidence even though they are not present to testify in court (which would normally be hearsay).  There is an exception if the information is not trustworthy, which the court has great discretion to determine at time of trial.

By the way, just because these rules apply does not mean that every lawyer follows them (I know, big surprise).  We have plenty of cases where we sit down to depose and question the drafting attorney and they wrongly assert the Attorney-Client Privilege.  That requires us to go to court on a motion to compel them to answer the questions asked.  So don’t be surprised if you have to fight for this information, but with these Evidence Code sections, you have an excellent chance at winning that fight.