94 P. 731 | Utah | 1908
This proceeding was begun in the district court of Utah county to establish a writing purporting to be the last will and testament of Branch Young, deceased. Objections were filed to the allowance of the proposed will by some of the children of the deceased upon the ground that it was made under coercion, duress, and undue influence, which were alleged to have been exerted upon the mind of the deceased by his wife, who was a beneficiary named in the will, and that such undue influence was exerted at a time when the testator was old, infirm, and of feeble mind.
On the hearing of the contest before the court the protestants called as a witness one A. B. Morgan, an attorney at law, who prepared the proposed will under the directions of the deceased. The witness testified that while the will was being prepared he had several conversations with the deceased and his wife concerning the provisions contained therein; that the deceased at the time presented to the witness a former will which had not been formally executed; that there was some
One question presented for review is, to what extent does the privilege between attorney and client prevail where the question arises in a will contest after the death of the client? Is the privilege the same in such a case as it is between an attorney and client with respect to all other matters arising before or after the death of the client? Subdivision 2 of section 3414, Revised Statutes 1898, so far as material to the present inquiry, provides as follows: “An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given therein in the course of professional employment.” It will be observed that, under the foregoing provision, the privilege therein given, as at common law, is purely personal, and belongs to the client. If the client waives the privilege, neither the attorney nor any one else may invoke it. It is likewise apparent that the privilege given by the statute is simply declaratory of that existing at common law. Without this statute, therefore, in view of section 2488, Revised Statutes 1898, in which the common law of England is adopted, the privilege would exist and be in force in this state. The mere fact that the common-law privilege is declared in statutory form does not extend the scope of its operation. The material question, therefore, is, did the privilege at common law extend to will contests between heirs of the deceased ancestor, where the issues of duress, undue influence, or insanity are involved ?
Prof. Wigmore, in his work on Evidence, vol. 4 section 2314, in concluding a discussion of the question of privilege, as applicable to an attorney and client in cases of will contests, states the rule as follows:
“But for wills a special consideration comes into play. Here it can hardly be doubted, that the execution and especially the contents are impliedly desired by the client to be kept secret during his lifetime, and are accordingly a part of his confidential communications. It must be assumed that during that period the attorney ought not to be called upon to disclose even the fact of a will's execution, much.*386 less its tenor. But, on the other hand, this confidence is intended to be temporary only. That there may be such a'qualification to the privilege is plain. That it appropriately explains the client’s relation With an attorney drafting a will seems almost equally clear. It follows, therefore, that after the testator’s death the attorney is at liberty to disclose all that affects the execution and tenor of the will. The only question could be as to communications tending to show the invalidity of the will, i. e., from which a circumstantial inference could be drawn that the testator was insane or was unduly influenced. It may be conceded that the testator would not wish the attorney to assist in any way the overthrow of the will. But the answer is that such utterances were obviously not confidentially made with reference to the secrecy of the fact of insanity or undue influence, for the testator of course did not believe those facts to exist,' and therefore could not possibly be said to have communicated them. ■ As to the tenor and execution of the will, it seems hardly open to dispute that they are the very facts which the testator expected and intended to be disclosed after his death; and, with this general intention covering the whole transaction, it is impossible to select a circumstance here or there (such as the absence of one witness in another room) and argue that the testator would have wanted it kept secret if he had known that it would tend to defeat his intended act. The confidence is not apportion-áble by a reference to what the testator might have intended had he known or reflected on certain facts which now bear against the will.”
The Supreme Court of Iowa, in a well-considered case, entitled Winters v. Winters, 102 Iowa, in speaking of the privilege, at page 57, 71 N. W., at page 185 (68 Am. St. Rep. 428) says:
“At common law, confidential communications to a physician were not privileged, and they are only so made by statute. Those to an attorney, however, were privileged, and it was held that the attorney might not divulge without the consent of the client while living, but that, after his death, in a contest between a stranger and an heir, dev-isee, or personal representative, the latter might waive the privilege' and examine the attorney concerning the confidential communications, though the stranger was not permitted to do so¿ and in a controversy between heirs at law, devisees, and personal representatives, the claim that the communication was privileged could not be urged, because, in such a case, the proceedings were not adverse to the estate, and the interest of the deceased, as well as of the estate, was that the truth be ascertained.”
In tbe following cases the doctrine of privilege between an attorney and' client is discussed, and it is held that communications or statements made by the deceased to the at
The authorities cited above make it reasonably clear that the right to invoke the privilege was withheld from both at common law when the issues involved affected the integrity of the will. If this be so, why should not the attorney who prepared the will be required to disclose all that he knows concerning the real state of mind of the testator? The attorney may know by whom and to what extent the testator was influenced. Again, he may know that the testator was not influenced at all and may further know the very reasons that controlled him in doing what he did in making the will. In the first instance should the person causing the will to be made be protected
It is urged that the case of In re Estate of Van Alstine, 26 Utah 193, 72 Pac. 942, is decisive of the question here presented ; that in that case this court held that where the insanity of the testator was involved the attending physician was incompetent to testify concerning the testator’s mental condition; and that no distinction with regard to the privilege can be made between an attorney who is professionally consulted in preparing a will and an attending physician. It is true that in that case this court held that the contestants could invoke the privilege against the attending physician. The question, however, was not discussed; and the decision was based upon the authority of Munz v. Salt Lake City Ry. Co., 25 Utah 220, 70 Pac. 852. The later case referred to was an action for personal injury, and the doctor was called to testify against the injured person whom he had treated for the injury. At common law the privilege did not extend to physicians, and the statute upon which the Munz Gase is based was enacted to protect the patient in just such oases. All the other cases, except Renihan v. Dennin, 103 N. Y. 573, 9 N. E. 320, 57 Am. Rep. 770, cited in support of the decision in the Van Alstine Gase, are cases involving the question involved in the Munz Gase. In all the cases cited the doctor was called to testify against the patient, and the privilege was invoked and allowed in favor of the patient in a case in which he was a personal actor. The case in 103 N. Y, 9 N. E., 57 Am. Pep., was- a will contest, and the decision was based upon a special statute which provided that the inhibition of the doctor to testify would apply to every examination, unless the inhibition was expressly waived by the patient. In Loder v. Whelpley, 111 N. Y. 248, 18 N. E. 877, the same
“An attorney or counselor at law shall not be allowed to disclose a communication made by his client to him or his advice given thereon in the course of his professional employment.” (Code Civ. Proc. N. Y.y sec. 835.)
This is a positive inhibition enjoined upon the attorney, and he is prohibited from disclosing any communication made by the client to him in a professional capacity. At least, this is the view the New York court took of it. The client being dead, and not present to' waive the privilege, if it were no more than that, the court held it could not be waived at all in such a case. The case in 111 N. Y., 18 N. E., is referred to in Doherty v. O’ Callaghan, supra, and it is there pointed out that the New York decision must rest upon the New York statute alone, since the rule adopted in the New York ease was not the rule at common law. It was likewise held in Gurley v. Park, 135 Ind. 440, 35 N. E. 219, that the deceased’s physician could not testify in a will contest respecting the deceased’s mental condition. This decision also rests upon the Indiana statute. The" Supreme Court of that state subsequently held, however, in Morris v. Morris, 119 Ind. 341, 21 N. E. 918, that the privilege could be waived by the personal representative of the deceased in a will contest, and that it was so waived by calling the physician as a witness. As we have pointed out, however, the distinction of permitting one side of a will contest "to waive the privilege while denying such right to the other, is purely arbitrary and without sound reason, and the weight of authority is against it. •
In this connection it should not be overlooked that the courts whose decisions are cited in the Van Alstine Case utterly repudiate the doctrine announced in- that case when applied to will contests. As an instance of this we need only refer to the Iowa and Missouri cases cited in the Van Alstine Dase. The courts of both those states are uncompromisingly
The proponents aláo offered to prove by the attorney the contents of a former will. This was objected to upon two grounds, namely, that it was immaterial and privileged. The court sustained the1 objection on both grounds. We do not think, for the reasons above .stated, that the matter was privileged. Nor was it necessarily immaterial. Where a contest is based upon duress, fraud, or undue influence, the provisions contained in a former will may become very important. If it can be shown that the bequests in favor of the person who is charged with having exerted the undue influence are the same, or substantially so, in the later will as they were in the former one, and that the influence was not present when the former will was made, it may be a conclusive answer to the charge of undue influence. If, however, it should appear that the bequests in favor of the person charged with having exerted undue influence are enlarged in the later will, and no reason for this is made to appear, while the surrounding conditions and circumstances are such as would make it probable that the person charged did exert undue influence over the mind of the testator, then again such facts may become very material in determining the issue. In this connection it should not be overlooked that any person not only has the legal right to make a will, but he has likewise the right to make as many different ones as he chooses, and to make them in accordance with the dictates of his own conscience and judgment. The mere fact that a change is made in a later will, of itself, may be no evidence whatever that the testator was unduly influenced to make such a change. But the triers of
In 1 Underhill on Wills, sec. 134, the rule is well stated in the following language:
“The testator may at any time revoke his will; and the fact that he does so arbitrarily and without giving his reason for so doing raises no presumption that a new will, executed to revoke the former or to take the place of it, was unduly procured. The force of proof of a change of testamentary disposition depends wholly upon the circumstances of the particular case. If the earlier will was a natural one, according to the circumstances surrounding its execution, the execution of a later instrument of a character directly contrary is material. And if the testator, at the time of the execution of the later will, which is not only unnatural, but directly contrary to his previous fixed and declared intention, is in feeble health, and is surrounded by those who are favored by the later will, a suspicion of undue influence, to say the least, is created. It would certainly be proper for the court, under such circumstances, to scrutinize all the evidence very closely to ascertain if the later will is the result of coercion or fraud, or if it was freely and voluntarily executed.”
Upon this subject, Hr. Justice Campbell, inRhe case of Beaubien v. Cicotte, 12 Mich. 488, says:
*394 “It is true, of course, that mailing- one will does not, of itself, render it at all unlikely that another will may be substituted; but previous preferences and plans may have a plain bearing upon an issue, where the question arises whether the testator has understanding^, and of his own free will, changed his settled views. No case has been, cited holding such proof inadmissible. It is of frequent occurrence in the cases reported.”
In support of this be cites a number of botb English and [American cases. The doctrine is also supported by the following authorities: Bulger v. Ross, 98 Ala. 272, 12 South. 803; In re Selleck’s Will, 125 Iowa, 678, 101 N. W. 453; Doherty v. O’Callaghan, 157 Mass. 90, 31 N. E. 726, 17 L. R. A. 188, 34 Am. St. Rep. 258; Schouler on Wills, sec. 242.
' In some of the foregoing cases the question was squarely .presented as to whether the attorney who prepared the later will should be required to testify to the contents of a former will, and it is held that it was not a matter of privilege at common law, and that he should be required to testify. . It is argued, however, that the protestants, in this connection, made certain offers of proof respecting the contents of fhe prior will, and that it was made to appear what the changes' were, and hence the proof offered was immaterial. In this connection the general rule is invoked that the evidence offered must appear to be relevant and material or no error can be predicated upon the ruling excluding it. It must be remembered that in connection with the changes in the last will the protestants also offered to prove the declarations of the deceased made by him at the time the changes were made. All this was excluded. It is true that as. the offer stands nothing seems very material, except, perhaps, the declarations of the testator made in connection with the last will. Nor are we inclined to depart from the general rule that unless it appears from the offer the evidence is material the ruling, of the court will be upheld. The reason upon which the rule rests is that the party offering the testimony must know what it is, and' if, upon his statement, it is not material, no error can be committed by its exclusion. But offers of proof need not be made in all cases, nor should they control in all 'cases where