Under the aptly named “testamentary exception,” a beneficiary taking under a will can sometimes access communications between the testator and the testator’s lawyer. This exception rests on the understandable concept that the testator would want such disclosure to ensure that his or her intent has been fulfilled.
In James v. Thomas, Civ. A. No. 1:24-CV-00061-RGJ-LLK, 2025 U.S. Dist. LEXIS 91776 (W.D. Ky. May 14, 2025), the federal court addressed discovery in plaintiffs’ malpractice case against their deceased father’s lawyer, which triggered the testamentary exception. The court noted that plaintiffs also had filed a state court action against their father’s widow for breach of a spousal agreement. After correctly explaining that the testamentary exception did not apply to communications between the decedent’s lawyer and the decedent’s jointly represented wife, the court had to address joint communications among the three of them.
The court’s solution was fascinating: “[a]s to joint communications Defendant [lawyer] may redact statements made by [decedent’s wife] but must produce communications made by [decedent], if contained within the same document or communication.” Id. at *9.
