Communicate in Confidence: Strength of Privilege in Estate Planning Upheld

On September 28, 2026, the Alberta Court of King’s Bench issued a decision in Wendlandt Estate (Re), 2026 ABKB 680. Justice Johal held that evidence that a deceased person may have contemplated changes to their will, without the existence of a subsequent testamentary instrument embodying that intention, was insufficient to engage the limited wills exception to solicitor-client privilege. As a result, Justice Johal dismissed the Applicant’s request for production of privileged solicitor-client communications.

Facts

On August 31, 2023, the deceased executed a formal will. 

On December 12, 2025, the deceased attended a law firm and provided instructions relating to the deceased’s estate plan, which resulted in a separate 2025 file being opened. 

However, affidavit evidence established that the 2025 file:

  1. Contained no executed will;
  2. Contained no codicil;
  3. Contained no document in the deceased’s handwriting; and
  4. Contained no document signed by the deceased.

The Applicant relied upon evidence that the deceased had become dissatisfied with the disposition in the 2023 will, including written notes indicating that the deceased intended to change their testamentary dispositions, that the deceased had communicated those intentions to others, and that the deceased subsequently met with a lawyer on December 12, 2025.

Justice Johal noted that there was no evidence that the deceased actually reviewed, executed, or attempted to execute a subsequent testamentary instrument. 

Reasons

Justice Johal, citing the Supreme Court of Canada, reinforced the “near-absolute” nature of solicitor-client privilege, indicating that it may only be broken in limited and specific circumstances, such as the wills exception. As the communications between the deceased and the law firm were protected by solicitor-client privilege, the Applicant bore the burden of establishing the wills exception. 

The wills exception, as established by the Supreme Court of Canada in Geffen v Goodman Estate, [1991] 2 SCR 353, creates an exception to solicitor-client privilege where disclosure of the communications would allow the Court to determine the deceased person’s true intentions concerning a will or trust instrument.

However, Justice Johal clarified that the wills exception should not be used as a tool to access privileged solicitor-client communications whenever a party believes that a deceased person may have contemplated a different estate plan. It can apply only to existing testamentary dispositions.

Justice Johal also relied on Edmunds Estate, 2017 ABQB 754, affirmed in Hood v South Calgary Community Church, 2019 ABCA 34, where instructions for a new will and the preparation of drafts were insufficient to establish a fixed and final testamentary intention. 

The crux of Justice Johal’s decision came down to the distinction between evidence that the deceased intended to change their estate plan and evidence of an existing testamentary instrument embodying that intention. 

Although the evidence in this case could support the conclusion that the deceased had become dissatisfied with the disposition in the 2023 will and intended to make changes, Justice Johal was clear that this was not enough. As Justice Johal put it, “contemplation is not testamentary disposition”; testamentary intention requires a “deliberate or fixed and final expression of intention to the disposal of property on death.”

In conclusion, Justice Johal found that while the evidence may have established an intention to change the 2023 will, it did not establish the existence of a subsequent testamentary instrument embodying that intention. Therefore, the wills exception did not apply, and the solicitor-client privileged communications remained intact. 

Takeaways

In our view, there are a number of takeaways from this case:

  • The wills exception to solicitor-client privilege is narrow and does not provide a general avenue to access privileged communications merely because the deceased may have intended to change their estate plan;
  • Evidence of an intention to change an estate plan, without an existing testamentary instrument embodying that intention, is insufficient to engage the wills exception; and
  • The wills exception cannot be used as an investigative mechanism to access privileged communications in search of evidence that might support a future testamentary claim.

For clients, this decision reinforces the strong protection afforded to confidential solicitor-client communications. This protection is particularly important in the context of estate planning, where clients rely on the ability to discuss their personal affairs and testamentary intentions openly and in confidence with their lawyer. Clients can have confidence that these discussions will remain privileged, subject only to very limited exceptions.

If you have questions about your estate plan or are considering creating one or making changes to an existing plan, our team at McLennan Ross is available to assist with all of your estate planning needs.