Alberta Court of Appeal upholds denial of disclosure request over privileged estate documents

The Alberta Court of Appeal has dismissed an appeal brought by the estate’s current personal representative, who wanted the estate’s prior personal representatives to disclose certain estate-related documents that a chambers judge had considered privileged. 

Collins Estate (Re), 2026 ABCA 227, revolved around the estate of a man who passed away on Apr. 23, 2019. His wife and his two children – the appellant and his sister – survived him. At the time of the testator’s death, the appellant was acting as his mother’s attorney under a power of attorney. 

Under a will dated Mar. 30, 2015, the testator: 

• included a specific gift to the University of Calgary 
• named his wife and children as the estate’s personal representatives 
• left the estate’s remainder to his wife for life, with the residue to go to his children 

Under a will purportedly executed on Aug. 10, 2016, the testator: 

• removed his wife as a beneficiary 
• provided specific gifts to the University of Calgary and the appellant, with the residue to go to the appellant’s sister 
• stipulated that an accounting firm’s managing partner should designate two partners as the estate’s personal representatives 

Successive personal representatives

The managing partner ultimately chose two partners, who were respondents in this case. In October 2019, in their capacity as personal representatives, the two accounting firm partners applied for probate of the 2016 will. 

On behalf of himself and his mother, the appellant challenged the 2016 will and applied for a caveat in the probate proceedings. He alleged that his father lacked capacity at the time of the will’s purported execution. 

On his mother’s behalf, the appellant applied for a claim for family maintenance and support under Alberta’s Wills and Succession Act, 2010. 

An August 2020 court order discharged the respondent partners as personal representatives, appointed the respondent Royal Trust Corporation of Canada as administrator pendente lite, directed Royal Trust to apply for formal proof of the 2016 will, and ordered a trial on the 2016 will’s validity and related issues. 

In February 2022, the court resolved the challenge to the 2016 will and allowed the appellant to apply for probate of the 2015 will. In May 2022, the court granted probate of the 2015 will and named the appellant as the estate’s personal representative. 

Disclosure request denied

Under the Surrogate Rules, AR 130/1995, and the court’s inherent power to supervise the estate administration, the appellant applied in January 2023 for the disclosure of the estate’s solicitors’ files regarding the estate administration and any estate-paid work to which the beneficiaries and personal representatives were legally entitled. 

The respondents opposed the application based on solicitor-client privilege and other grounds. 

On Dec. 6, 2024, a chambers judge determined that the respondents did not need to disclose certain privileged estate-related documents. The appellant assailed aspects of the judge’s order. 

Appeal dismissed

The Court of Appeal of Alberta saw no reviewable error in the circumstances. First, the appeal court ruled that the chambers judge did not conflate the appellant’s different roles. 

Instead, the appeal court explained that the judge rejected the appellant’s legal arguments despite knowing that he was a beneficiary, an attorney for his mother, and the estate’s personal representative. 

The appeal court considered it unnecessary to define the relationship among the successive personal representatives or the scope of disclosure obligations and privilege claims among them. 

The appeal court also rejected the appellant’s arguments that: 

• The judge should have found that the joint interest exception applied more broadly between successive personal representatives than between a representative and the beneficiaries, regardless of previous adverse personal interests 
• The judge committed an error in connection with the adversity findings in the context of the joint interest exception 
• Section 20(2) of Alberta’s Estate Administration Act, 2014, permitted the appellant, as personal representative, to waive privilege over the records 

Second, the appeal court held that the judge carefully considered the various disputes and disagreements between the appellant and respondents and issued adversity findings with a basis on the record. 

Third, regarding records related to Sawgrass Investments Ltd, the appeal court saw no reason to interfere with the judge’s findings that counsel had a retainer with Royal Trust directly and that the appellant’s role as Sawgrass’s controlling shareholder and sole director was not a determinative factor in the analysis. 

Enjoy this story? Read the latest trusts and estates law news on the main page!