Insight into Accountant Client Privilege in Will Contests: Illinois

The law recognizes the fact that all information is not intended for public disclosure. Few of the common legal protections are the attorney-client privilege, the work-product doctrine and accountant-client privilege. In a common scenario the assertion of privilege is governed by Supreme Court Rule 201(b) (2). However, pursuant to accountant-client privilege contained in Section 27 of the Illinois Public Accounting Act, the following four elements must exist for an accountant-client document or communication to be privileged:

I. The communications must originate in confidence that they will not be disclosed.
II. The element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
III. The relation must be one which in the opinion of the Community ought to be sedulously fostered.
IV. The injury that would inure to the relation by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposition of the litigation.

The statutory accountant-client privilege in Illinois, like the attorney-client privilege, promotes open and forthright disclosures by individuals using accounting services. Furthermore, the accountant-client privilege doesn’t extend to communications disclosed to third parties, unless those parties have a common interest with the disclosing party.

In the case of Brunton Vs. Kruger (2014) IL App (4th) 13042, attorney Matthew F. Tibble took a stand on behalf of his client, an accounting firm, Striegel, Knobloch & Company (Striegel). The discovery order required Striegel to turn over to petitioner, June Brunton, any documents having to do with estate planning services Striegel provided for her parents, Helen P. Kruger and Gordon J. Kruger, who were then deceased. Striegel believed, that the accountant-client privilege in section 27 of the Illinois Public Accounting Act (225 ILCS 450/27 (West 2012)) protected those documents from disclosure in a judicial proceeding. The court held, [1]-The accountant-client privilege in § 27 (225 ILCS 450/27 (2012)) of the Illinois Public Accounting Act, 225 ILCS 450/0.01 to 32 (2012), did not protect the information the deceased parents provided to an accountant who provided them with estate planning services from disclosure in a will contest since, although the information was received in confidence and the privilege also covered information received by the accountant’s agent, the parents, not the accountant, held the privilege, and under the testamentary exception to the privilege, the information the accountant received while assisting the parents with estate planning was admissible in a will contest; [2]-The personal representative and the other heirs waived the privilege held by their parents by requesting that the order requiring the accountant produce the information to their sister be affirmed.

However, the moot question in the said case was – what happens to that privilege after the client dies, and how the privilege can be waived. The possible answer to which would be that in contests over the validity of a will, where both sides, the executor on the one hand and the heirs or next of kin on the other, claim under and not adversely to the decedent, the assumption should prevail that the decedent would desire that the validity of his will should be determined in the fullest light of the facts.

Many courts considering the attorney-client privilege have said that in controversies between heirs, devisees, and personal representatives of a decedent, communications between the decedent and the decedent’s attorney were not privileged, because the proceedings were not adverse to the decedent or to the estate, whose interest was simply in ascertaining the truth. This rule has often been applied in will contests. Under the testamentary exception, information or evidence an attorney received from the decedent while assisting the decedent with estate planning would be admissible in a subsequent will contest.

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