Privacy and my Lawyer.... how far does that go?
It's true that any communication between you and your lawyer is confidential. It cannot be divulged, discussed or provided to other people or the Courts. This concept is known as Legal Professional Privilege or for the sake of this blog, LPP. It's the backbone of the honest relationship a lawyer and their client must have at all times. But did you know LPP can be waived or lost? Did you know that your former-wife, husband or partner may be able to access the entirety of your Family Law file once you die? Here’s how and, more importantly, how to prevent it.
So waiving or losing LPP means that your lawyer may be compelled to relay the information you told them in confidence to the Courts or others. Generally, the Privilege is lost by the person acting in a manner that is inconsistent with the meaning of confidentiality – for example, discussing their legal matter with friends or family, or posting about it on social media. There's a whole manner of ways in which you as the client, can blow your LPP, but thats another blog entirely.
The shocking question is what happens to the communications between you and your lawyer when you die? Surely if you didn’t waive LPP when you were alive, then your records aren’t available to anyone else – right? Wrong – and this has particularly distressing implications for those who were involved in family law proceedings or negotiations prior to their death.
Ideally, you would have left a Will that reflected your current circumstances when you pass away. Matter closed. In this ideal situation and in most circumstances, the Executor of your Estate can even continue to sort out the issues of your divorce. However, many people delay updating or creating their Will while negotiating family law issues. We’ve heard the excuses time and time again – “Oh, I’ll do it after we settle the property split” or “that won’t happen to me” or "I just need to focus on the divorce first". The unfortunate truth is that it can happen to you and, while you won’t be around to see it happen, your loved ones will be.
One serious and rather confronting implication of not having an up-to-date Will is the possibility that, in the unfortunate event of your death, your former partner may gain access to your entire Family Law file – including all those nasty things you told your lawyer about them and your strategies to thwart them.
You’re probably wondering how on earth this could be true – they aren’t even your current partner and you clearly didn’t want that information falling into their hands. Well, when you die, LPP continues but your Privilege may be waived by your “legal personal representative”, being the Executor or Administrator of your Estate.
Cue your ex partner who, if you have a Will that provided for your ex partner to act as your Executor, may apply for a Grant of Probate and would then become your legal personal representative. Or, if you died without leaving a Will and left a husband or wife who you had separated from but not yet divorced, as your “spouse” they may apply for Letter of Administration and would then become your legal personal representative. In either situation, once they become your representative, they may request that your lawyer provides all of your files to them and, subject to any court order to the contrary, your lawyer must oblige. Then they handle your affairs and split your estate as they think fit, your wishes be damned.
While this may not seem rational or ethical, you can take measures to avoid such an unpleasant situation and the flow-on effect it would have on your loved ones.
A situation like this is extremely unpleasant for all involved – your family, friends and even your lawyers. To ensure the information you intended to be private remains so, get legal advice. Our lawyers are experienced in all areas of Wills & Estate Planning and work in conjunction with our Family Lawyers to ensure our clients’ needs and wishes are understood, adequately reflected and eventually met.