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Legal AnalysisTrusts

Dead Clients Do Talk

By September 20, 2016No Comments

The legal doctrine of “attorney-client privilege” has become a well-known phrase in the general public’s lexicon. What the general public does not know is that the “privilege” generally lasts past death.


Gauguin – Spirit of the Dead Watching

Additionally, what is not understood, even by some attorneys is that the attorney-client privilege is called a “privilege” because the rule is actually an exception to our overarching duty to disclose facts to opposing counsel during disputes.

Further unknown to the general public and most attorneys who do not practice in probate or estate administration is the exception to this exception: the “testamentary exception.”

A case decided earlier this year, Eizenga v. Unity Christian School of Fulton, Illinois, involved a trust dispute and clarifies this rule and its exceptions for Illinois courts and attorneys.


Walter Westendorf (Westendorf) established trust in 1997, which he amended 7 times before dying in 2013. Dale A. Eizenga (Eizenga) was designated as successor trustee when the trust was initially prepared and executed. In fact, Eizenga, in their capacity as successor trustee, was nearly the only relevant constant during the 16 years after the initial trust was prepared.

In 2006, with the trust’s 3d amendment, Attorney Russell Holesinger (Holesinger) became a trustee and Unity Christian School of Fulton, Illinois (School), of which Holesinger also allegedly represented (read potential conflict of Interest), became 1 of 3 charitable remainder beneficiaries. Four amendments later, in 2012, Holesigner became the single second successor trustee and the School became the primary trust beneficiary.

Eizenga filed a complaint against Holesinger, alleging “undue influence,” and eventually sought Holesinger’s client documents. Holesinger refused and a lower court held Holesinger in contempt, and Holesinger appealed on the grounds of attorney-client privilege and the attorney work-product doctrine.

As mentioned above, the attorney-client privilege generally lasts past death but for the testamentary exception that provides that in will contests, the attorney-client privilege cannot be invoked. Ironically, in the year of Westendorf’s death, another Illinois case, DeHart v. Dehart, reiterated the testamentary exception. Holesinger argued that this case, however, didn’t involve a will but instead involved a trust.


The Third District Appellate Court then examined the 2010 Graham Handbook of Illinois Evidence, other case law, and treatises addressing this issue and ruled that a will contest is not the only situation where the testamentary exception can be used.

Next the court considered Holesinger’s attorney work-product argument. The attorney work-product doctrine is another exception to our disclosure duties, allowing attorneys to protect trial strategies and the mental impressions and opinions used to prepare for trial and establish said strategies.

Because the documents in Holesinger’s files were not “created in preparation for any impending or pending litigation,” the Court held that Holesingers documents were not protected by the attorney work-product doctrine and, thus, affirmed the contempt finding by the lower court.

The rationale is that a testator or trustmaker (settlor) would want their intent followed; so, if the attorney’s work-product was the only way to settle the dispute, then that information must be made available.

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