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