Other Estate Planning Matters

Inter Vivos Gifts

Attorney-Client Privilege

In re Texas A&M—Corpus Christi Foundation, Inc., 84 S.W.3d 358 (Tex. App.—Corpus Christi 2002, orig. proceeding [mand. denied]).


Donor made a $2 million inter vivos gift to Charity. After Donor died, her Estate claimed that she lacked the mental capacity to make the gift. Charity sought discovery from two attorneys who worked with Donor on estate and trust matters prior to when Donor made the contested inter vivos gift. Estate and the attorneys asserted that the attorneys were prohibited from testifying because of the attorney-client privilege. The court denied Charity’s request to compel the discovery and Charity sought mandamus relief.

The appellate court conditionally granted mandamus because the discovery Charity sought was not protected by the attorney-client privilege. The court first determined that appeal would not be a sufficient remedy because without the requested discovery, the case would be needlessly tried. The court then concluded that the trial court abused its discretion in denying Charity’s motion to compel because the trial court incorrectly determined that the information Charity wanted to discover was protected by the attorney-client privilege. Texas Rule of Evidence 503(d) provides that “[t]here is no privilege * * * [a]s to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transactions.” Charity seeks testimony from the attorneys which is relevant to Donor’s capacity in an action between parties who are both claiming through the now-deceased Donor. Accordingly, the attorney-client privilege does not bar the discovery.

Moral: Although the attorney-client privilege continues even after a client’s death and may be claimed by the deceased client’s personal representative, there is an important exception for communications which are relevant to issues between parties who claim through the client.