Probate Attorney Daniel A. McGowan handles fiduciary liability and inheritance disputes throughout Ohio and Florida. He can be reached for a free consultation by clicking here.
The attorney client privilege in the context of fiduciary litigation and inheritance disputes has been the recent topic of various erudite discussions by academics and legal practitioners.
Under Ohio law, an attorney is generally prohibited from testifying about a communication made to the attorney by a client. However, an exception to this general rule exists where the client is deceased, so long as the lawyer has obtained the express consent of the surviving spouse or the executor or the administrator of the estate of the deceased client. Another evidentiary exception to the general rule arises when the subject involves a communication between an attorney and a client who has since died if the communication is relevant to a dispute between parties who claim through that deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction, and the dispute addresses the competency of the deceased client when the deceased client executed a document that is the basis of the dispute or whether the deceased client was a victim of fraud, undue influence, or duress when the deceased client executed a document that is the basis of the dispute.
Significantly, Ohio law also recognizes an exception to the attorney client privilege in undue influence claims among beneficiaries. Miller v. Shreve, 21 N.E.3d 666, 2014-Ohio-4612. You can read the entire opinion by clicking here.