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Maryland Court of Appeals Expounds the Testamentary Exception to the Attorney-Client Privilege While Barring Its Applicability to Withhold Beneficiaryís Access to Prior Version of Decedent Fatherís Trust

Mary Caroline Zook v. Susan M. Pesce
--- A.3d ---, 2014 WL 1998714 (Maryland Court of Appeals, May 16, 2014)

by Morgan N. Gough, Summer Associate
Semmes, Bowen & Semmes (

Available at

In Zook v. Pesce, the Maryland Court of Appeals found error when the trial court denied Petitioner access to the prior version of her decedent fatherís trust, but affirmed the judgments of the lower courts that the amended trust was valid and that the error was harmless. The court rejected Petitionerís request for a new trial, which would include evidence of the prior version of the trust and the circumstances and instructions in its preparation and execution, stating that inclusion of such evidence could not affect the ultimate ruling. The court affirmed the order of the trial court in a unanimous opinion authored by Judge Adkins.

In August 2010, Mary Caroline Zook filed a pro se Complaint for Inspection of Records in the Prince Georgeís County Circuit Court challenging the validity of Eugene Zookís (the ďDecedentĒ) amended trust (ď2008 Living TrustĒ). Decedent modified several paragraphs of his eighty-page trust just twenty-two days before his death on December 24, 2008. The 2008 Living Trust granted Decedentís three living children, Dennis, Susan (ďRespondentĒ), and Mary Caroline (ďPetitionerĒ) equal shares of all remaining trust property, yet unequal access to their shares. Specifically, Article Seven of the 2008 Living Trust designated Respondent as trustee and instructed Respondent to maintain Petitionerís share in trust according to these specific terms and conditions: Respondent must provide Petitioner with $2,000.00 of her share upon Decedentís death and thereafter distribute Petitionerís share over twenty equal biannual payments spanning ten years.

Disputing the validity of the 2008 Living Trust, Petitioner alleged that Decedent was incompetent at the time of revision, thus the changes to the Trust did not reflect Decedentís true testamentary intent. Petitioner argued that Decedentís grave illness rendered him not of sound mind, that Respondent and Respondentís spouse exuded undue influence on Decedent to make the changes, and excluding at trial the 2007 Living Trust and associated testimony prejudicially denied her the ability to support these allegations. Petitioner presented evidence that Decedent was seriously ill with prostate cancer, that Respondent drove Decedent to his attorneyís office on the day of revision, and that there was an actual change made to the document.

The Court of Appeals held that the 2007 Living Trust was within the testamentary exception to the attorney-client privilege, therefore it was erroneously withheld. The attorney-client privilege is ďa rule of evidence that prevents the disclosure of a confidential communication made by a client to his attorney for the purpose of obtaining legal advice.Ē Zook, 2014 WL 1998714 at 2 (citing E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc., 351 Md. 396, 414 (1998)). In order to encourage individuals to freely consult with their attorneys, free of apprehension, the attorney-client privilege bars confidential communications even after the clientís death. Zook, 2014 WL 1998714 at 3 (citing Swidler & Berlin v. United States, 524 U.S. 399, 407 (1998)).

The attorney-client privilege is not absolute, as evinced by the courtís application of the testamentary exception, which allows disclosure of otherwise confidential communications for consideration during litigation between the testatorís heirs. Zook, 2014 WL 1998714 at 3 (citing United States v. Osborn, 561 F.2d 1334, 1340 (9th Cir. 1977) (expanding on the slightly broader application of the exception). The testamentary exception better helps the court, in carrying out the decedentís estate, discern the decedentís true donative intent; it is presumed that such disclosure would be consistent with the decedentís wishes. Id. In this case, Petitioner wished to invoke the testamentary exception to force disclosure of communications between Decedent and his attorney, as well as the 2007 Living Trust itself, the contents of which Petitioner assumed would reveal unsound mind and undue influence. Further, in Moore v. Smith, 321 Md. 347, 353-54 (1990), the Maryland Court of Appeals stated that a change in a trust or will could serve as evidence of undue influence. Petitioner interpreted this holding as support for a new trial, at which the admitted 2007 Living Trust and accompanying communications would reveal changes to the document, thereby proving per se undue influence. Petitioner alleged prejudicial error, claiming she was unable to adequately argue her case without inclusion of the 2007 Living Trust and associated communications.

Ample evidence in the trial record supported the validity of the 2008 Living Trust, without a need for compelled disclosure regarding the 2007 Living Trust. The attorney, who met with Decedent on several occasions, noted that Decedent, despite not physically feeling well, was of sound mind in that he was aware of and understood his surroundings and decisions. Respondent and Respondentís husband corroborated this observation of Decedent. Petitioner was not able to overcome her burden of proof to combat the presumption that Decedent was sane and had the capacity to revise his trust.

There was also insufficient evidence to support undue influence. Respondent drove Decedent to the attorneyís office on the day of the revisions, but Respondent was excluded from the actual meeting during which the revisions were made. The trial court improperly applied the doctrine of confidential relations, which provides that when dealing with confidential relationships, the burden of proof shifts to the defendant to show that the change in the document was made freely and deliberately. On appeal, the court clarified the application of this doctrine, explaining that the doctrine of confidential relations does not shift the burden of proof to the defendant in cases dealing with devises or bequests from parent to child. See Koppal v. Soules, 189 Md. 346, 351 (1947). Despite this overly-generous error, Petitionerís proffered evidence was still inadequate.

Although the Court of Appeals agreed, as did all parties, that the testamentary exception should apply to the 2007 Living Trust, the evidence in the record sufficiently negated Petitionerís ability to make a prima facie showing that the 2008 Living Trust was invalid; therefore, the court appropriately denied Petitionerís request for a new trial.