Executive Summary: Key Legal and Evidentiary Issues

• Dispute centered on whether legal invoices disclosed during estate accounting are protected by solicitor-client privilege

• Former executor sought to prevent opposing counsel from using disclosed invoices, citing inadvertent disclosure

• Defendant applied for production of redacted legal invoices and other professional service documents

• The core conflict involved whether production of documents should precede the return of unredacted versions

• Court considered the validity of a notice of application that improperly named counsel rather than the client

• Privilege was upheld for legal advice portions of invoices, but not for amounts disclosed in estate accountings

Facts and outcome of the case

Background of the estate dispute

This case arises from a contentious legal battle between siblings following the death of Lily Diane Barbieri in 2018. Her will named two of her children, Ricardo Joseph Barbieri and Teresa Diane White, as co-executors, with instructions that her estate be divided equally among her three children. Probate was granted in 2019.

The relationship between the co-executors deteriorated. In July 2019, Ricardo sought to have Teresa removed as executor. This led to a consent order in September 2019, which appointed Ricardo as sole executor. As part of that order, he agreed to provide bi-monthly accounting of the estate to his siblings, which he did over a period of 29 months. During this process, he included five legal invoices from Kuhn LLP in the accountings.

Inadvertent disclosure and the privilege claim

Ricardo later claimed that some content in those invoices was privileged and should not have been disclosed. He sought to assert a blanket privilege over them, requested their destruction, and attempted to disqualify Teresa's legal counsel for having viewed them. That application was rejected. The court held that Ricardo had waived privilege over the amounts shown in the invoices but not necessarily over any legal advice described within them.

On appeal, the appellate court upheld this reasoning and clarified that Ricardo retained solicitor-client privilege over the substance of legal advice contained in the invoice descriptions. However, it also indicated the parties should cooperate to resolve the matter, specifically regarding the redaction of privileged content.

Procedural application for document production

Following the appeal, Teresa filed a new application seeking an order that Ricardo’s counsel produce redacted versions of the five invoices, as well as additional legal and accounting invoices. Ricardo objected, arguing that he was no longer the executor, and that production requests should be directed to Solus Trust Company, the current administrator of the estate.

A key procedural issue was that Teresa’s application was improperly worded—it sought production from Ricardo’s legal counsel rather than Ricardo or the estate directly. The court ruled that this was procedurally incorrect, particularly given the adversarial nature of the litigation, and dismissed that part of the application.

Outcome and costs

Despite dismissing the improperly framed portion of the application, the court granted Teresa’s request under paragraph 2 of her notice of application. Ricardo was ordered to produce redacted versions of the five legal invoices and identify any specific redactions based on privilege. The court emphasized that Ricardo could not avoid this obligation by virtue of having been removed as executor, as the invoices were obtained during his time in that role.

The request for production of broader accounting and legal invoices was denied, with the court noting that such requests should be directed to the new administrator, Solus Trust Company.

Costs were awarded in the cause, meaning no party received immediate costs; the issue of costs will be determined at the conclusion of the overall proceedings.