In re Rittenmeyer, 558 S.W.3d 789 (Tex. App.—Dallas 2018, no pet.).


Attorney-Client Privilege


After Husband’s death, Widow claimed that a pre-nuptial agreement was not enforceable. To acquire evidence to prove her claim that the agreement is unenforceable because Husband failed to make a fair and reasonable disclosure of his property, she sought discover of will drafts, trust documents, and communications reflecting on Husband’s intent to provide for her. Husband’s independent executrix objected claiming that this information was privileged. The trial court rejected the privilege argument holding that the exception in Rule 503(d)(2) of the Texas Rules of Evidence applied, that is, the attorney-client privilege does not apply “if the communication is relevant to an issue between parties claiming through the same deceased client.”


The appellate court conditionally granted the independent executrix’s request for a writ of mandamus holding that the Rule 503(d)(2) exception does not apply. For example, the court explained that the existence of will drafts is not relevant to whether Husband executed a new will or that the independent executrix destroyed a later will.


Moral:  Although certain evidence involving a decedent could be very relevant to resolving estate litigation, the attorney-client privilege may prevent that material from being discovered.