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.