Zook v. Pesce

ADKINS, J. In this contest between two siblings, we consider the testamentary exception to the attorney-client privilege. Though both parties urge us to recognize this exception, they disagree on whether it was properly applied in this case. In the course ²³⁷ of resolving this dispute, we will take this opportunity to more clearly illustrate when and how the exception applies. FACTS AND LEGAL PROCEEDINGS Eugene D. Zook (“the Decedent”) died on December 24, 2008, after succumbing to prostate cancer at age 81.

At the time of his death, the Decedent had three living adult children: Dennis Eugene Zook, Susan M. Pesce (“Respondent”), and Mary Caroline Zook (“Petitioner”). On November 20, 2007, the Decedent, with the help of attorney, Thomas P. Downs (“Downs”), set up the Eugene D. Zook Living Trust (“the 2007 Living Trust”). The Decedent amended the Living Trust on December 2, 2008 (“the 2008 Living Trust”), twenty-two days before his death. The instrument designated Respondent as the trustee of the Living Trust.

Article Seven of the 2008 Living Trust specified that each of the Decedent’s three children were to receive a one-third share of all remaining trust property. Although the distribution of the trust assets was equal, each heir’s access to his or her share was not. Whereas the 2008 Living Trust directed the trustee to distribute the shares of Dennis Zook and Susan Pesce outright and free of trust, the trustee was directed to maintain in trust Petitioner’s share according to specific terms and conditions. 1 On August 10, 2010, Petitioner, acting pro se, filed a “Complaint For Inspection Of Records” (“the Complaint”) in the Circuit Court for Prince George’s County against Pesce, Downs, Dennis Zook, and Catherine Zook, Dennis’s wife. The ²³⁸ Complaint offered 18 counts, appearing to question the validity of the 2008 Living Trust. 2 Pesce admitted the allegations of paragraphs 1, 2, 3, 7, and 13, denied 4-6, 8-12, and 14-18, and requested the Complaint be dismissed for, among other ²³⁹ reasons, failure to state a claim.

A re-filed version of the motion to dismiss also claimed that the Complaint improperly joined parties who were not part of the administration of the Trust or Estate — namely, Downs, Dennis Zook, and Catherine Zook. This motion was granted for all parties except Pesce. Trial took place on December 5, 2011. The court interpreted the Complaint as alleging that the 2008 Living Trust must be set aside as invalid because the Decedent was not of sound mind to enter the new agreement. 3 After some discussion moderated by the court, Respondent agreed to provide an audit of the accounting of the trust assets.

Notwithstanding this agreement, Petitioner requested access to a copy of the 2007 Living Trust. Downs, responding to Petitioner’s subpoena for records, asserted that the 2007 Living Trust was a privileged communication with his deceased client, and that he would assert that privilege on the Decedent’s behalf, as well as on the behalf of the trustee of the Living Trust, Pesce. The court honored that privilege and refused to allow Petitioner access to the 2007 Living Trust or allow any questions about its contents. The court then moved on to the question of the soundness of the Decedent’s mind at the time that the 2007 Living Trust was amended.

After hearing from four witnesses called by Petitioner, the court found the revisions to the 2007 Living Trust “fair, proper and reasonable under the circumstances.” The court then ruled that “Ms. Zook does not have a claim for relief based on paragraph 5 of her complaint.” The court ordered the agreed-to audit of trust assets and dismissed the remainder of the complaint against Pesce. ²⁴⁰ Petitioner appealed to the Court of Special Appeals, again appearing pro se. In an unreported opinion, the intermediate appellate court affirmed the Circuit Court. Petitioner, having acquired counsel, petitioned this Court for certiorari, which we granted to consider the following questions: 4 1. Does the testamentary exception to the attorney-client privilege exist in Maryland? 2.

Did the trial court err by recognizing the applicability of the attorney-client privilege to the unamended Living Trust? Although the litigants present the first question as an unresolved issue, this Court has already recognized the existence of the testamentary exception, and we will not depart from our previous holding. See Benzinger v. Hemler, 134 Md. 581 , 107 A. 355 (1919). With this Court’s previous ruling in mind, we hold that the testamentary exception does not grant Petitioner the relief she seeks.

Thus, we answer the second question in the negative. DISCUSSION The Testamentary Exception To The Attorney-Client Privilege . [1,2] The attorney-client privilege 5 is “a rule of evidence that prevents the disclosure of a confidential communication ²⁴¹ made by a client to his attorney for the purpose of obtaining legal advice.” E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc., 351 Md. 396, 414 , 718 A.2d 1129, 1138 (1998). “The privilege is based upon the public policy that ‘an individual in a free society should be encouraged to consult with his attorney whose function is to counsel and advise him and he should be free from apprehension of compelled disclosures by his legal advisor.’ ” State v. Pratt, 284 Md. 516, 520 , 398 A.2d 421, 423 (1979) (quoting Harrison v. State, 276 Md. 122, 135 , 345 A.2d 830, 838 (1975)). It has been recognized as “the oldest of the privileges for confidential communications known to the common law.” Upjohn Co. v. United States, 449 U.S. 383, 389 , 101 S.Ct. 677, 682 , 66 L.Ed.2d 584 (1981). Indeed, for over 150 years, this Court has recognized that “[n]o rule is better established than ‘that communications which a client makes to his legal adviser for the purpose of professional advice or aid shall not be disclosed, unless by the consent of the client for whose protection the rule was established.’ ” Fulton v. Maccracken, 18 Md. 528, 542-43 (1862).

This privilege is reflected in the Maryland Code, as well. See Md.Code (1973, 2013 Repl. Vol.), § 9-108 of the Courts and Judicial Proceedings Article (“CJP”). The privilege survives even after the client’s death.

Invoking the purpose of fostering free communication between attorney and client, the Supreme Court has explained: Knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel. While the fear of disclosure, and the consequent withholding of information from counsel, may be reduced if disclosure is limited to posthumous disclosure in a criminal context, it seems unreasonable to assume that it vanishes altogether. Clients may be concerned about reputation, civil liability, or possible harm to friends or family. Posthumous disclosure of such communications may be as feared as disclosure during the client’s lifetime.

Swidler & Berlin v. United States, 524 U.S. 399, 407 , 118 S.Ct. 2081, 2086 , 141 L.Ed.2d 379 (1998). Thus, even though the client may be deceased, the communication remains privileged. ²⁴² Nevertheless, the privilege is not absolute. Only those communications “ ‘pertaining to legal assistance’ ” and “ ‘made with the intention of confidentiality’ ” are covered by the privilege. E.I. du Pont, 351 Md. at 416 , 718 A.2d at 1138 (quoting Burlington Industries v. Exxon Corp., 65 F.R.D. 26, 37 (D.Md.1974)).

Additionally, this Court has explained that the privilege does not “ ‘extend to communications made for the purpose of getting advice for the commission of a fraud’ or a crime.’ ” Neuman v. State, 384 Md. 285, 309 , 863 A.2d 321, 335 (2004) (quoting United States v. Zolin, 491 U.S. 554, 563 , 109 S.Ct. 2619, 2626 , 105 L.Ed.2d 469 (1989)). Petitioner advocates that we recognize a testamentary exception to the attorney-client privilege, and Respondent concurs. Under this exception: [Confidential communications between attorney and client for the purpose of preparing the client’s will ... are privileged during the testator’s lifetime and, also, after the testator’s death unless sought to be disclosed in litigation between the testator’s heirs, legatees, devisees, or other parties, all of whom claim under the deceased client. United States v. Osborn, 561 F.2d 1334, 1340 (9th Cir.1977) (emphasis added).

The rationale underlying this exception is that in the context of a contested estate, such disclosure “helps the court carry out the decedent’s estate plan.” Edward J. Imwinkelried, The New Wigmore, A Treatise on Evidence: Evidentiary Privileges § 6.13.2(b) (Richard D. Friedman ed., 2d ed. 2010). Were a court to exclude such evidence, “the court administering the will might reach an erroneous conclusion about the decedent’s donative intent.” Id. Thus, some states have elected to allow this exception to the attorney-client privilege based on the idea that “ ‘the deceased client would presumably want his communications disclosed in litigation between such claimants so that his desires in regard to the disposition of his estate might be correctly ascertained and carried out.’ ” Id. (quoting California Law Revision Comm’n Comment, Cal.

Evid.Code § 957, Imwinkelried and Hallahan California Evidence Code Annotated 160 (2001)). ²⁴³ Happily for both parties in this case, Maryland recognized the wisdom of the testamentary exception about a century ago. As this Court explained in Benzinger : The rule, we think, is well stated in the note In re Young[’s Estate ], 17 L.R.A. (N.S.) 108 [ 33 Utah 382 , 94 P. 731 ] in which it is said: “It may be laid down as a general rule of law, gathered from all the authorities, that, unless provided otherwise by statute, communications by a client to the attorney who drafted his will, in respect to that document, and all transactions occurring between them leading up to its execution, are not, after the client’s death, within the protection of the rule as to privileged communications, in a suit between the testator’s devisees and heirs at law, or other parties who all claim under him.” 134 Md. at 586 , 107 A. at 357 (quoting Burdett A. Rich and Henry P. Farnham, editors, Annotation, Privilege of communications to attorney during preparation of will, 17 L.R.A.N.S. 108 (1909)). The Benzinger Court held that the trial court erred by not permitting the attorney who drafted the will “to testify as to the transactions, circumstances, and instructions given by the testatrix to him in connection with the will and its preparation, as well as what was said by her at such time relative thereto.” 134 Md. at 588 , 107 A. at 357-58 .

The Maryland rule is consistent with that adopted in a majority of states. See E.S. Stephens, Annotation, Privilege as to communications to attorney in connection with drawing of will, 66 A.L.R.2d 1302 (1959). As evidenced by this Court’s holding in Benzinger , the testamentary exception has existed in Maryland for close to a century, despite never having been formally named. Nonetheless, it has been some time since this Court has spoken on the testamentary exception.

For this reason, we reaffirm that in a dispute between putative heirs or devisees under a will or trust, the attorney-client privilege does not bar admission of testimony and evidence regarding communication between the decedent and any attorneys involved in the creation of the instrument, provided that evidence or testimony tends to help clarify the donative intent of the decedent. ²⁴⁴ The Applicability Of The Testamentary Exception In This Case Our next step is to consider how the testamentary exception applies in this case. Petitioner argues that the trial court erred in refusing to allow her to examine the 2007 Living Trust. Petitioner claims that she was prejudiced because her complaint alleged both that the Decedent was of unsound mind and subject to undue influence, and the content of the 2007 Living Trust was necessary to support this allegation. She relies on this Court’s holding in Moore v. Smith, 321 Md. 347, 353-54 , 582 A.2d 1237, 1239 (1990) in which this Court held that a change from a former will or trust can be a factor in finding undue influence.

In Petitioner’s view, because the 2007 Living Trust document could demonstrate that the Living Trust had been changed, we should remand the case for a new trial in which she may introduce the 2007 Living Trust, and examine Downs and Pesce about that Trust. Competency Of Decedent To evaluate this argument, we look first to the detail of the trial court’s substantive rulings on the issue of whether decedent demonstrated unsound mind or undue influence. The court questioned Decedent’s lawyer on this point: THE COURT: Well, I have a couple of things I want to ask. On the day that this amendment was made to the trust that was — did Mr. Zook voluntarily make these changes or amendments? [Downs]: Yes, Your Honor.

THE COURT: And did he sign them without any undue influence? [Downs]: Yes, he did. THE COURT: And as far as you know, because you said you have prepared a trust for him previously, were you present when his — when he signed the December 2nd document? [Downs]: I believe I’m the notary, Your Honor, yes. ²⁴⁵ THE COURT: And do you recognize his signature? You notarized the document? [Downs]: Yes. THE COURT: It is, in fact, his signature? [Downs]: It is.

THE COURT: Okay. Now, you said that Mr. Zook was not feeling well, but he was coherent, correct? [Downs]: Yes, he was. THE COURT: Did the fact that he didn’t feel well in any way affect his ability to know and understand what was going on when he was in your office at the time? [Downs]: No. I had no doubt that he understood what he was doing. THE COURT: And I might have asked you this already— did I ask you — I think I asked you did anyone influence him in any way to get him to sign it?

If not, I’m asking you that now. [Downs]: No, Your Honor. I met with him individually on that day. His daughter brought him there, but I excluded her from the meeting concerning what he wanted to do. The Judge later explicitly ruled that Petitioner did not have a claim for relief under paragraph 5, which alleges incompetency.

The law governing a challenge to a will or trust based on the decedent’s lack of capacity or competency has long been settled: “Whether a testator had sufficient mental capacity is determined by a consideration of his external acts and appearances. It must appear that at the time of making the will he had a full understanding of the nature of the business in which he was engaged; a recollection of the property of which he intended to dispose and the persons to whom he meant to give it, and the relative claims of the different persons who were or should have been the objects of his bounty.” ²⁴⁶ Sellers v. Qualls, 206 Md. 58, 66 , 110 A.2d 73, 77 (1954) (quoting Philip L. Sykes, Contest of Wills in Maryland § 61 (1941)). The burden is imposed on the person challenging the instrument to prove a lack of capacity: The law presumes that every man is sane and has capacity to make a valid will, and the burden of proving the contrary rests upon those who allege that he lacked mental capacity. Moreover, in the absence of proof of prior permanent insanity, it must be shown that the testator was of unsound mind at the time the will was executed in order to overcome the presumption of sanity.

Arbogast v. MacMillan, 221 Md. 516, 523 , 158 A.2d 97, 101 (1960) (citations omitted). It is clear from the record that Petitioner was allowed to question witnesses regarding the Decedent’s mental state and condition on the date the Living Trust was amended in 2008. Petitioner first asked Respondent: [Petitioner:] Was he well or was he sick? [Respondent:] He was of sound mind. He was doing things.

He might not have been feeling well, but he was living, enjoying. Petitioner posed the same question to Respondent’s husband, who shared a home with the Decedent: [Joseph Pesce:] He was extremely alert and aware of everything he did and he was still cantankerous and bossy and opinionated, like he always was. Finally, Petitioner questioned Downs: [Petitioner:] What was the health of Eugene D. Zook when he came to your office on December 2nd, [20]08? [Downs:] He was seriously ill with cancer. [Petitioner:] Seriously ill with cancer? How was his — how was he acting? [Downs:] He was coherent and — just a second.

He said he was not feeling well. ²⁴⁷ Petitioner did not testify herself, and the questions above constituted all of her evidence regarding her father’s competency. Evidence that the Decedent was seriously ill with cancer is not sufficient, by itself, to show a lack of competency. That is all that Petitioner was able to produce in this case. Indeed, her questions produced testimony that Decedent was coherent at the date and time that he signed the 2008 Living Trust.

We have no hesitancy in affirming, as did the Court of Special Appeals, the trial court ruling that Petitioner produced insufficient evidence to establish a lack of competence on the part of Decedent. Undue Influence Relying on the evidence described above, and the Decedent’s act of revising the 2007 Living Trust via execution of the 2008 Living Trust, Petitioner also claims that her father took the actions under the undue influence of her sister and sister’s spouse. At trial, Petitioner was able to present witness testimony that established that the 2007 Living Trust had indeed been changed. 6 Petitioner alleged that the 2008 Living Trust was not a faithful representation of the Decedent’s true testamentary intent. Consistent with the testamentary exception, the ²⁴⁸ trial court allowed questions to ascertain whether the revised Living Trust was indeed an embodiment of the Decedent’s testamentary intent.

After considering all the evidence presented, the court concluded “that the transaction of — that Mr. Eugene Zook made with respect to that December 2nd, 2008 document was fair, proper and reasonable under the circumstances.” From this the court concluded that “Ms. Zook does not have a claim for relief based on paragraph 5 of her complaint.” Relying on our holding in Moore that a change in a will or trust can be a factor in a finding of undue influence, Petitioner asks for a new trial, implying that the 2007 Living Trust, together with the circumstances already described, would demonstrate grounds to throw out the 2008 Living Trust. We conclude that Petitioner overestimates the efficacy of the evidence she seeks. In Moore , the Court held that “[generally, undue influence amounts to physical or moral coercion that forces a testator to follow another’s judgment instead of his own.” 321 Md. at 353 , 582 A.2d at 1239 (citation omitted). The Court then recognized the following list of elements characteristic of undue influence: 1.

The benefactor and beneficiary are involved in a relationship of confidence and trust; 2. The will contains substantial benefit to the beneficiary; 3. The beneficiary caused or assisted in effecting execution of will; 4. There was an opportunity to exert influence; 5.

The will contains an unnatural disposition; 6. The bequests constitute a change from a former will; and 7. The