Relates to attorney requirements regarding revocable trusts

Title of bill

An act to amend the civil practice law and rules, in relation to attorney requirements regarding revocable trusts

Purpose of bill

The purpose of this bill is to add revocable trusts to wills as being subject to any action involving probate, validity or construction under 4503(b) of the Civil Practice Law and Rules

Summary of provisions of bill

Section one of the bill amends Rule 4503(b) of the Civil Practice Law and Rules by adding revocable trusts after the death of the grantor.

Section two of the bill is the effective date, effective immediately.

Justification

Although tension unquestionably exists between the public policies favoring complete discovery and shielding relevant evidence from disclosure, the attorney-client privilege "promotes the use of legal representation by assuring clients that they may freely confide in their counsel without fear that such confidences may be divulged." Of course, to the extent that the privilege shields relevant evidence from disclosure, it obstructs the truth-finding process (see Matter of Colby, 187 Misc.2d 695, 696-97, 723 N.Y.S.2d 631 (Sur. Ct., New York County 2001).

While CPLR 4503(b) unquestionably applies in probate contests, no similar statutory exception to the attorney-client privilege exists for contests concerning revocable trusts. The absence of a statutory exception to the attorney-client privilege in such trust contests is unjustified in light of the fact that revocable trusts function as the equivalents of wills. Thus, the same evidentiary privileges and exceptions, including the exception to the attorney-client privilege currently codified in CPLR 4503(b), should govern in controversies concerning revocable trusts as well (see Matter of Leddy, File No. 2013-374927/A (Sur. Ct., Nassau County Feb. 28, 2014)).

Finally, in order to ensure that privileged material is not subject to disclosure during the life of a revocable trust's grantor, the amendment to CPLR 4503(b) specifically proposes that the exception to the attorney-client privilege, as it would apply to revocable trusts, would only be available after the grantor's death. Such provision may, however, be superfluous in light of the settled notion that a party other than a grantor only has standing to contest a revocable trust instrument after the grantor's death (see Davidson, 177 Misc.2d at 930).

Accordingly, for the foregoing reasons, CPLR 4503(b) should be amended to apply to contests concerning the validity of revocable trust instruments.

Legislative history

New bill, 2016.

Fiscal implications for state and local governments

None.

Effective date

Immediately.