Can I Depose the Drafting Attorney

Emily recently discovered a codicil to her mother’s will that significantly reduced her inheritance. She suspects the attorney who drafted the codicil, Mr. Harding, unduly influenced her mother, especially because he was also managing her mother’s financial affairs. Emily wants to depose Mr. Harding, hoping to uncover evidence of wrongdoing. Unfortunately, it’s not that simple – and attempting to do so without a solid legal strategy could prove costly.

The question of deposing the drafting attorney in a will contest is complex and depends heavily on the specific facts of your case and what you hope to achieve. Generally, attorneys enjoy a high degree of immunity from being forced to testify about confidential client communications. However, that immunity isn’t absolute, and there are several pathways to potentially get the attorney under oath. The key is understanding the scope of attorney-client privilege and the exceptions that may apply.

The primary barrier is attorney-client privilege. This protects communications between the attorney and client made for the purpose of seeking or providing legal advice. Depositions are designed to extract information, and the attorney will vigorously object to any questions that delve into confidential client disclosures. However, privilege belongs to the client – in this case, Emily’s deceased mother. If you can demonstrate that the attorney’s actions went beyond providing legal advice and involved financial self-dealing or a breach of fiduciary duty, you might be able to pierce that privilege.

What Information Can the Attorney Disclose?

Mr. Harding can likely testify about non-confidential facts. This includes the logistical aspects of drafting the codicil – the date it was signed, who was present, whether the mother appeared competent at the time (though his opinion on competence is less valuable than a medical expert’s). He can also describe his standard procedures for taking instructions and executing wills, without revealing what instructions were given. He can’t, however, disclose the specific reasons Emily’s mother made the changes she did, unless Emily obtains a waiver or a court order.

Overcoming the Privilege Obstacle

Here’s how we might approach this. First, we need to establish a strong factual basis for believing Mr. Harding exerted undue influence. This means gathering evidence of his financial entanglement with Emily’s mother, any isolation of Emily from her mother, or changes in the mother’s estate plan that align with Mr. Harding’s interests. The standard for proving undue influence is high, but Probate Code § 21380 is critical here: California law presumes undue influence if a gift is made to a care custodian of a dependent adult. The burden of proof shifts to the caregiver to prove they did not coerce the senior. If Mr. Harding was acting as a caregiver, this dramatically strengthens your position.

Second, we can seek a court order compelling the attorney’s testimony. This requires a motion detailing the specific information you believe the attorney possesses, why it’s relevant to the case, and why the attorney-client privilege should be overcome. This motion often hinges on proving a fraud exception. If Emily can demonstrate that Mr. Harding knowingly participated in a fraud on her mother (e.g., misrepresenting the tax consequences of the codicil, or forging her signature), the privilege is lost. Remember, proving a signature is fake often requires a forensic handwriting expert, whereas proving fraud in the inducement requires evidence that the testator relied on a lie (e.g., ‘your son is stealing from you’) to change their estate plan.

The Risk of a Motion to Quash

Be warned: filing a motion to compel an attorney’s testimony is an aggressive tactic that carries risk. Mr. Harding will likely file a motion to quash, arguing the deposition is improper and seeks privileged information. The court will then weigh the competing interests and rule accordingly. If the court denies your motion, you could be ordered to pay Mr. Harding’s attorney’s fees. This is where my experience as a CPA becomes invaluable.

As a 35+ year Estate Planning Attorney & CPA in Moreno Valley, I understand how financial incentives can cloud judgment. I’ve seen countless cases where a caregiver or advisor subtly steers a senior towards changes in their estate plan that benefit themselves. We can meticulously analyze the financial transactions, tax implications, and estate plan documentation to identify red flags and build a compelling case for overcoming attorney-client privilege. For example, a step-up in basis overlooked during estate planning could indicate a lack of diligence, while a questionable valuation of assets might suggest improper influence.

Standing and the 120-Day Rule

Finally, let’s quickly address standing. You must be an ‘interested person’—meaning you would financially benefit if the current will is overturned (e.g., a child disinherited by a new will, or a beneficiary named in a previous version)—to contest a will. And as a reminder, Probate Code § 8270 states that once the will is admitted to probate, interested parties have a strict 120-day window to file a petition to revoke probate. If you miss this deadline, the will is generally locked in stone, even if it was forged or signed under duress.

What causes California probate cases to spiral into delay, disputes, and extra cost?

Success in probate court depends less on the size of the estate and more on the accuracy of the petition and the behavior of the fiduciary. Whether the issue is a forgotten asset, a contested creditor claim, or a disagreement among siblings, understanding the procedural triggers for court intervention is the best defense against prolonged administration.

• Court Dates: Prepare for the probate hearing.
• Steps: Follow strict probate procedure requirements.
• Tracking: Maintain managing a probate case logs.

California probate is most manageable when authority is documented early, assets are classified correctly, and procedure is followed consistently from petition through closing. When the process is approached with realistic expectations about notice, claims, accounting, and dispute risk, the estate is more likely to move toward closure without avoidable conflict or delay.

Verified Authority on California Will Contests

• The 120-Day Statute of Limitations: California Probate Code § 8270
  Time is the enemy in a will contest. Under Section 8270, an interested person may petition the court to revoke the probate of a will, but this petition MUST be filed within 120 days after the will is admitted. Missing this deadline is usually fatal to the case.
• Mental Competency Standard: California Probate Code § 6100.5 (Unsound Mind)
  This statute defines exactly what “mental incompetency” means in probate. It is not just general forgetfulness; the contestant must prove the deceased did not understand the nature of the testamentary act, could not recollect their property, or was suffering from a specific hallucination or delusion that dictated the will’s terms.
• Presumption of Undue Influence (Caregivers): California Probate Code § 21380
  To protect vulnerable seniors, California law automatically presumes undue influence if a will leaves assets to a paid care custodian or the lawyer who drafted the instrument. This shifts the heavy burden of proof onto the accused to prove their innocence.
• No-Contest Clause Enforceability: California Probate Code § 21311
  Many wills contain threats to disinherit anyone who challenges them. This statute limits the power of those clauses. A beneficiary cannot be penalized for a contest if the court finds they had “probable cause” to file the lawsuit.
• Standing to Contest: California Probate Code § 48 (Interested Person)
  Not everyone can sue. To contest a will, you must qualify as an “interested person”—typically an heir who would inherit under intestate succession (if there were no will) or a beneficiary named in a prior valid will.
• Financial Elder Abuse Remedies: California Probate Code § 859 (Double Damages)
  Will contests often overlap with elder abuse claims. If the court finds that a person used undue influence, fraud, or bad faith to take assets (or change a will) to the detriment of the estate, they can be liable for twice the value of the property taken, plus attorney fees.