State ex rel. Williams v. Koffman, WD
| Decision Date | 01 February 1994 |
| Docket Number | No. WD,WD |
| Citation | 869 S.W.2d 850 |
| Parties | STATE of Missouri, ex rel. Robert L. WILLIAMS, Jr., Relator, v. The Honorable Robert L. KOFFMAN, Judge of the Circuit Court of Pettis County, Missouri, Probate Division, Respondent. 48119. |
| Court | Missouri Court of Appeals |
James T. Buckley, Sedalia, for relator.
Stanley Brian Cox, Sedalia, for respondent.
Before KENNEDY, P.J., and BERREY and FENNER, JJ.
In this case we issued our preliminary writ to prohibit the trial judge's requiring a defendant to provide to the plaintiffs, in response to plaintiffs' Request for Production of Documents, "a copy of the Last Will and Testament of Laura Merle Williams." Plaintiffs were the guardians of the person and conservators of the estate of Laura Merle Williams [the "protectee"], who had been declared incapacitated and disabled. The plaintiffs, in their capacity as guardians and conservators, filed suit against the defendant, Robert L. Williams, Jr. [the "relator"], seeking to recover a large sum of money ($169,000) which he had gotten from their protectee before she had been declared incapacitated and disabled and placed under guardianship after a hearing held on December 14, 1991.
After answer by respondent judge to the petition for writ of prohibition, and after briefs and argument by the parties, we now discharge the preliminary writ.
In the course of discovery by depositions and interrogatories, the following facts were developed: Laura Merle Williams had executed a will. The date of the will is not shown by the record, but it was before she was declared incapacitated and disabled. She had the will in a bank safe deposit box. The safe deposit box was hers, according to the deposition testimony of Robert L. Williams, Jr., "but my name was on the lockbox."
On December 12, 1991, two days before the scheduled hearing in which she was adjudged incapacitated and disabled, defendant Robert L. Williams, Jr. and Laura Merle Williams went to the bank to enter the safe deposit box. They did not have a key. They had the box drilled. Robert L. Williams, Jr. removed the will from the box and took it to his lawyer's office. The lawyer placed the will in his safe deposit box, where it resides at the present time.
Mr. Williams on his deposition declined, on the advice of his attorney, to answer any questions about the execution of the will, including its date or the names of the witnesses thereto. Whether he had knowledge to answer the questions the record does not show.
It is notable that the plaintiffs do not seek the original will itself; they seek a copy of it. It is this feature which makes the case unique. Plaintiffs tell us in respondent's brief that they want a copy of the will for the purpose of ascertaining the names of the witnesses, who would have observed Laura Merle Williams during the time she was making transfers of money to Robert L. Williams, Jr. The identification of the witnesses might lead to the discovery of admissible evidence, the plaintiffs say, and so is discoverable under Rule 56.01. One can imagine other information the plaintiffs might get from the will, if they had a copy of it, which might be useful to them in their lawsuit against Mr. Williams. See, e.g., State ex rel. St. Louis Union Trust Co. v. Sartorius, 351 Mo. 111, 171 S.W.2d 569, 572 (1943).
Mr. Williams resists furnishing a copy of the will. He has offered to file the original will with the probate court for safekeeping under section 474.510, RSMo 1986. 1
Mr. Williams argues that the will is "confidential and privileged," and hence that he may not be required to furnish a copy of it to the plaintiffs. It is on this ground alone that Mr. Williams resists furnishing a copy of Laura Merle Williams's will. Mr. Williams makes no claim implicating the privileged status of a client's communications to his attorney, or of documents entrusted by client to attorney, discussed in 8 Wigmore, Evidence sections 2307, 2314 (McNaughton rev. 1961 & Supp.1991). Mr. Williams is not an attorney. For our purposes, although it is not entirely clear from the record before us, we may assume that Mr. Williams is the authorized custodian of the will.
The guardians and conservators have not challenged Mr. Williams's standing to claim any privilege which would shield the will from disclosure. Neither do they make any claim of waiver of the privilege by Laura Merle Williams through her guardian and conservators.
To cloak a will with privilege from disclosure during the testator's lifetime would be to enlarge privilege...
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