The California Court of Appeals recently held that a former trustee cannot prevent access to communications between the trustee and his attorney to a successor trustee. Morgan v. Superior Court finds that the attorney-client privilege vests with the “office of the trustee” and not with the person himself.

Here, the Settlor died in 2014. Settlor (Beverly) had three adult children: Thomas, Nancy and John. Thomas succeeded as successor trustee. Nancy filed a Petition to reform or invalidate the Trust on the grounds of lack of capacity, undue influence, and fraudulent misrepresentations. Further, Nancy sought to remove Thomas as successor trustee. As a result of poor accounting among other things, the trial court suspended Thomas as successor trustee and appointed a couple, the Hitchmans as a new successor trustee. The Court ordered Thomas to provide all communications related to the Trust to the Hitchmans. The Court specifically ordered Thomas’ attorney to provide: invoices, billings, fee agreements, copies of checks and wire transfers used to pay any attorney fees and costs. Thomas refused to provide such documents, and appealed the decision.

The Court of Appeals found that such communications could be disclosed because Thomas was using his attorney to get advice in his personal capacity as a beneficiary and how to use Trust assets for his personal benefit. The Court reasoned that if Thomas had separate counsel for his personal interests, those communications might be confidential. However, when Thomas’ attorney advised him on both matters in Thomas’ role as successor trustee and as a beneficiary, such communications were not privileged.

This case is important to reflect in what role an attorney is hired. If hired as a trust attorney, then the communications are available to the next trustee. However, if a trustee hires an attorney for his capacity as a beneficiary such communications would be privileged.

Marinaccio Law represents clients on a variety of trust matters, including contests, administration, and drafting. Please contact Anthony if you have any questions regarding a Trust at 818-839-5220.