The U.S. Court of Appeals for the Third Circuit recently held that the testamentary exception to the attorney-client privilege does “not grant the deceased client the power to waive a privilege held by” the living, even if doing so would further the decedent’s testamentary intent. See Kyriakopoulos v. Maigetter, No. 23-2276 (Nov. 20, 2024). Interesting in its own right, Kyriakopoulos also raises the fundamental question of whether Pennsylvania recognizes the testamentary exception at all.

Kyriakopoulos involves a dispute between a decedent’s husband and son over ownership of a co-op apartment the decedent and her husband had owned jointly. The son claimed that his mother’s testamentary intent was for the apartment to be devised to him. Before her death, the decedent and her husband jointly engaged an attorney to assist with their estate planning. The attorney prepared parallel wills for the couple, but the wife’s will did not clearly call for the apartment to pass to her son if she predeceased her husband. After she died, the husband continued to confer with the same estate-planning attorney for purposes of obtaining legal advice.