Zook v. Pesce
91 A.3d 1114
Md.2014Background
- Eugene D. Zook executed a Living Trust in 2007 and amended it on December 2, 2008 (the 2008 Living Trust); the 2008 Trust named daughter Susan Pesce trustee and placed Mary Zook’s one-third share in a ten-year payout trust while the other children received outright distributions.
- Mary Caroline Zook (Petitioner) filed a pro se complaint (2010) seeking inspection of records and alleging the 2008 Trust was invalid for lack of testamentary capacity and undue influence.
- At trial, attorney Thomas Downs invoked attorney–client privilege for the 2007 Trust and refused production; the circuit court sustained the privilege and denied access to the 2007 Trust or questioning about it.
- The trial court heard live testimony about Decedent’s condition and the amendment; it found Decedent coherent, that the amendment was voluntary and notarized, and ruled against Petitioner on incompetency and undue influence.
- The Court of Special Appeals affirmed; the Maryland Court of Appeals granted certiorari to decide (1) whether Maryland recognizes the testamentary exception to the attorney–client privilege and (2) whether the trial court erred in invoking the privilege to block the 2007 Trust.
Issues
| Issue | Plaintiff's Argument (Zook) | Defendant's Argument (Pesce/Downs) | Held |
|---|---|---|---|
| Does Maryland recognize a testamentary exception to the attorney–client privilege? | Zook urged recognition to obtain the 2007 Trust for use in probate/caveat litigation. | Pesce/Downs agreed an exception exists but defended the privilege’s application here. | Court: Maryland recognizes the testamentary exception (reaffirming Benzinger). |
| Did the trial court err by refusing production/questioning about the 2007 Trust under privilege? | Zook: exclusion prevented proof of change from 2007 to 2008 Trust and prejudiced claims of undue influence and incapacity. | Pesce/Downs: privilege invocation protected client communications; trial findings would stand without the 2007 Trust. | Court: It was error to exclude the 2007 Trust under the testamentary exception—trial court should have allowed discovery. |
| Was the privilege error prejudicial such that a new trial is required? | Zook: the 2007 Trust would have shown a change supporting undue influence/insanity claims and warranted retrial. | Pesce/Downs: evidence at trial (coherence, counsel’s testimony, limited changes) doomed Zook’s claims even if 2007 Trust were admitted. | Court: Error was harmless; Petitioner failed to show prejudice and would not have met Moore undue-influence or capacity standards. |
| Did petitioner meet burden to prove lack of capacity or undue influence? | Zook: Decedent was terminally ill, medicated, signed days before death; change in instrument supports inference. | Pesce: testimony showed Decedent coherent, met privately with counsel, few changes to trust, and no proof of coercion or susceptibility. | Court: Petitioner failed to carry burden—insufficent evidence of incapacity or coercive undue influence under Maryland law. |
Key Cases Cited
- Benzinger v. Hemler, 134 Md. 581 (recognizing testamentary exception to attorney–client privilege)
- Swidler & Berlin v. United States, 524 U.S. 399 (1998) (privilege survives death; rationale for posthumous confidentiality)
- E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc., 351 Md. 396 (privilege protects confidential communications for legal advice)
- Moore v. Smith, 321 Md. 347 (1990) (seven-factor undue influence framework)
- Koppal v. Soules, 189 Md. 346 (1947) (burden rules and definition of unlawful undue influence)