The U.S. Court of Appeals for the Third Circuit recently held that the testamentary exception to the attorney-client privilege does “not grant the deceased client the power to waive a privilege held by” the living, even if doing so would further the decedent’s testamentary intent. See Kyriakopoulos v. Maigetter, No. 23-2276 (Nov. 20, 2024). Interesting in its own right, Kyriakopoulos also raises the fundamental question of whether Pennsylvania recognizes the testamentary exception at all.
Kyriakopoulos involves a dispute between a decedent’s husband and son over ownership of a co-op apartment the decedent and her husband had owned jointly. The son claimed that his mother’s testamentary intent was for the apartment to be devised to him. Before her death, the decedent and her husband jointly engaged an attorney to assist with their estate planning. The attorney prepared parallel wills for the couple, but the wife’s will did not clearly call for the apartment to pass to her son if she predeceased her husband. After she died, the husband continued to confer with the same estate-planning attorney for purposes of obtaining legal advice.
Having not received the apartment, the son sued his stepfather, claiming that the stepfather had entered into an agreement—a contract to will—with the decedent to convey the apartment to her son at her death. The litigants did not contest the existence of the testamentary exception under Pennsylvania law or its application to communications that the decedent had with the attorney about her testamentary intent.
Instead, the privilege dispute centered on communications that the husband had with the attorney after his wife died. The son argued, and the district court agreed after an in camera review of the documents at issue, that the husband’s communications with the attorney were discoverable under the testamentary exception because they provided evidence of the decedent’s testamentary intent. Recognizing the novelty of its holding, the district court certified its decision for an immediate appeal.
What Is the Testamentary Exception?
In its colorfully written opinion, the Third Circuit described the testamentary exception as involving “a conflict between the deceased client’s interest in confidential communications and his desire that his testamentary intentions be fulfilled.” Who wins such a conflict? The “deceased’s intentions, in a rout,” according to the court. In a “suit between devisees under a will, … the testamentary exception steps in to waive the privilege, permit the attorney to testify about the earlier communications, and thereby further the client’s intent.” The rationale for the testamentary exception is grounded in an assumed/implied waiver of the privilege by the deceased client.
Is There a Testamentary Exception Under Pennsylvania Law?
The Kyriakopoulos panel noted that the U.S. Supreme Court and many states have long recognized the testamentary exception. However, Pennsylvania is among the few states with “little or nothing to say on the subject.” The little that has been said in Pennsylvania has been inconsistent. In a nonprecedential 2018 decision, a Pennsylvania Superior Court panel wrote that Pennsylvania had no appellate or statutory authority establishing a testamentary exception. See Huber v. Noonan, No. 3706 EDA 2017 (Oct. 23, 2018). That Superior Court panel recognized that a few Pennsylvania trial courts had recognized and applied the testamentary exception. See, e.g., In re Theravos Estate, 10 Pa. D.&C.5th 481 (Center Cty. 2010).
Despite Huber, there is an early 20th-century Pennsylvania Supreme Court case that supports the existence of the testamentary exception under Pennsylvania law. See Boyd v. Kilmer, 132 A. 709 (1926). In that case, Andrew Boyd, estranged from his adult daughters, conveyed his farm to Albert Kilmer in exchange for Kilmer caring for Boyd during his final illness. After Boyd died intestate leaving no property to them, his daughters sought to nullify Boyd’s conveyance of the farm to Kilmer. At trial, Boyd’s lawyer testified that Boyd had every intent and desire to convey the farm to Kilmer—even against the attorney’s advice to make some testamentary provision for the daughters. The trial court rejected the daughters’ challenge to the deed to Kilmer.
On appeal, the daughters argued that admission of the attorney’s testimony was improper. The Pennsylvania Supreme Court held that the trial court properly admitted the lawyer’s testimony, holding that an “attorney may testify in favor of his client … and, as the testimony was in support of the deed executed by his client, it was properly admitted.” Moreover, the daughters, strangers to the attorney-client relationship, were without any right to invoke the privilege. A leading national treatise on the attorney-client privilege concludes that Boyd establishes in Pennsylvania that “an attorney may testify to a deceased client’s intent in a will contest,” i.e., that Boyd established the testamentary exception under Pennsylvania law. See 1 Rice, Paul R., "Attorney-Client Privilege: State Law Pennsylvania § 9:66," (July 2024).
The Third Circuit Rejects the Application of the Testamentary Exception to the Facts of 'Kyriakopoulos'
In Kyriakopoulos, the Third Circuit assumed, without deciding, that some form of a testamentary exception exists under Pennsylvania law but held that the exception did not apply to the Kyriakopoulos facts. The court stated that the testamentary exception would apply in a “suit between devisees under a will,” but “rarely reaches claims arising in contract outside the bounds of an estate dispute.” The son’s claim to the apartment sounded in contract and did not constitute a will contest per se. The Third Circuit therefore held that the case was not of the type where the testamentary exception generally applies. Notably, the Kyriakopoulos court did not cite to or address Boyd, which involved a challenge to an inter vivos contract and not to a conveyance under a will.
The Third Circuit also held that the testamentary exception did not apply in Kyriakopoulos because there was no dispute over the decedent’s intent; everyone agreed that the decedent’s desire was for the apartment to pass to her son. Instead, the issue was the still-living husband’s intent—a poor fit for application of the testamentary exception.
Finally, the court held that an implied waiver by the decedent of the attorney-client privilege—which is the rationale for the testamentary exception—could not stretch far enough to allow the decedent to foist a waiver onto the living and subject to discovery her surviving husband’s privileged communications, even if those communications shed light on the decedent’s testamentary intentions.
The Third Circuit held that the husband’s communications with counsel that occurred after his wife’s death were not discoverable pursuant to the testamentary exception. A desire to vindicate and honor a decedent’s testamentary intentions does “not grant the deceased client the power to waive a privilege held by others.” The husband’s communications with counsel apparently provided evidence of his wife’s testamentary intent, but the Third Circuit held that she had no posthumous ability to waive the privilege that protected her husband’s communications with counsel after her demise.
Reprinted with permission from The Legal Intelligencer, © ALM Media Properties LLC. All rights reserved.
