It wasn’t long after Beverly Morgan died in 2014 that her loved ones started suing each other. Daughter Nancy filed to invalidate the trust her mom set up, specifically targeting a provision that named her brother Thomas as trustee. After Thomas failed to provide an accounting, a court suspended him and ordered that all records be turned over to interim trustees. Thomas refused, arguing a trust provision let him withhold attorney-client communications from his successor.

A California appellate court rejected his petition to reverse that order because the attorney-client privilege belongs to the office of the trustee, not to the trustee individually. A trust provision permitting a trustee to withhold attorney-client correspondence from a successor trustee “violates public policy and is unenforceable.” If Thomas wanted privileged communications, he needed to hire a lawyer for him as an individual rather than the attorney he used for guidance as trustee. He never retained personal counsel and was forced to hand over all trust records to his successor.

It’s a lesson for trustees and those that rely on them. An estate lawyer can help everyone involved better understand their responsibilities—and recognize which lines not to cross. Morgan v. Superior Court (2018) 23 Cal.App.5th 1026.

About the author:

John O’Grady leads a full-service estate and trust law firm in San Francisco. His practice includes Estate Planning & Administration, Probate and Trust Litigation.