Tritt v. Tritt

2026 BCSC 598 Tritt v. Tritt IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Tritt v. Tritt, 2026 BCSC 598 Date: 20260407 Docket: S234103 Registry: Victoria Between: Brigitte Tritt Plaintiff And The Estate of Heinz Walter Tritt, Rudiger Tritt, Executor of the Will of Heinz Walter Tritt, Rudiger Tritt and Rainer Tritt Defendants Before: Associate Judge Harper Reasons for Judgment For the Plaintiff: No appearance Counsel for the Defendants: N. Ghisi Counsel for the Application Respondent: A. D. G. MacIsaac Place and Date of Hearing: Victoria, B.C. March 3, 2026 Place and Date of Judgment: Victoria, B.C. April 7, 2026 Table of Contents Introduction.. 3 The Application.. 4 Issues. 5 Discussion and Analysis. 5 1. Relevance. 5 2. Does Rudiger have the legal authority to waive the privilege that attaches to the communications between Heinz and Ms. Lane?. 7 Conclusion.. 11 Costs. 11 Introduction [1] The plaintiff, Brigitte Tritt, seeks to vary the will of her deceased husband Heinz Walter Tritt (the "Deceased" or "Heinz"). Because the parties share the same last name, I will refer to the parties by their first names, meaning no disrespect. [2] Brigitte and Heinz were married in 1988. Each of them had children from previous marriages (Brigitte had three children and Heinz had two, Rudiger and Rainer). Heinz died on August 26, 2023 at the age of 86. [3] In 1994, Brigitte and Heinz made mirror wills. Heinz's will (the "Will") provides that the residue of his estate is to be divided equally between Rudiger and Rainer. The will states: "I have not named my wife, Brigitte, as a beneficiary of my estate because my said wife and I each have children from former marriages, and we have agreed to execute wills leaving our separate estates to our respective children. My wife and I have also agreed to keep our assets separate from the other's." [4] Brigitte is named as executrix and trustee of the Will with Rudiger as alternate executor and trustee. Brigitte renounced her executorship with the result that Rudiger is the executor and trustee. [5] In 2006, Brigitte and Heinz separated. It is the separation that underlies the application before me. Rudiger and Rainer say that Brigitte and Heinz remained separated for the rest of Heinz's life. [6] Section 2(2) of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA] provides: Two persons cease being spouses of each other for the purposes of this Act if, (a) in the case of a marriage, an event occurs that causes an interest in family property, as defined in Part 5 [Property Division] of the Family Law Act, to arise, or (b) in the case of a marriage-like relationship, one or both persons terminate the relationship. [7] If Brigitte was not Heinz's spouse as defined by s. 2(2) of WESA she has no standing to apply to vary the Will. [8] Brigitte says that although she and Heinz separated for a short period of time in 2006, they reconciled later that year and were spouses within the statutory definition of WESA for the rest of Heinz's life. [9] Whether Brigitte was Heinz's spouse and therefore has standing to bring this action is an issue will be determined at trial. The Application [10] The application arises from events surrounding Heinz going to see a lawyer in 2017 to inquire about obtaining a power of attorney naming Brigitte as attorney. The applicants are Rudiger and Rainer in their personal capacities, not Rudiger as executor of the Will. [11] The lawyer Heinz consulted was Deanna Lane. Rudiger and Rainer seek an order requiring Ms. Lane's law firm, MacIsaac and MacIsaac (the "Law Firm"), to provide to defence counsel "the right to inspect and make copies of their solicitor's file in respect of Heinz Walter Tritt's estate planning, in or around 2017 and 2018" (the "Solicitor's File"). Rudiger and Rainer say that Ms. Lane determined that she could not prepare a power of attorney because of concerns about Heinz's capacity. Rudiger and Rainer argue that Heinz's capacity to enter into a spousal relationship is at issue in the wills variation action and therefore, per counsel's oral submissions, they want to "look through" the Solicitor's File to see if anything is relevant. [12] The Law Firm opposes the release of the Solicitor's File on the basis of irrelevance and solicitor client privilege. [13] Counsel for Rudiger and Rainer requested the documents directly from the Law Firm. Ms. Lane provided a careful and comprehensive reply explaining why the Law Firm would not disclose the Solicitor's File and providing legal analysis to support the Law Firm's position. [14] Brigitte takes no position on the application. Rudiger is named in the style of proceeding as "Executor of the Will of Heinz Walter Tritt". In my view, Rudiger ought to have been named as executor of the estate, not executor of the will, but that is a practice point that is immaterial to the application. Rudiger as Executor did not file an application response. Issues 1. Is the Solicitor's File relevant to the issue of Heinz's capacity to enter into a spousal relationship with Brigitte? 2. Does Rudiger as the executor and trustee of Heinz's estate have the legal authority to waive the privilege that attaches to the communications between Heinz and Ms. Lane? Discussion and Analysis 1. Relevance [15] The notice of application is framed as an application for the production of documents pursuant to Rule 7-1(18) of the Supreme Court Civil Rules. This rule states: If a document is in the possession or control of a person who is not a party of record, the court, on an application under Rule 8-1 brought on notice to the person and the parties of record, may make an order for one or both of the following: (a) production, inspection and copying of the document; (b) preparation of a certified copy that may be used instead of the original. [16] A party seeking production of documents from a non-party must establish that the documents may relate to a matter in issue in the proceeding. This is the so-called Tier 2 level of production. Tier 1 is the requirement of a party to list documents that are material. [17] The proper approach to Rule 7-1(18) is set out in Novak v. Seemann, 2023 BCSC 1784 at para. 39 citing Northwest Organics, Limited Partnership v. Roest, 2017 BCSC 673 at para. 81: It is apparent from the wording of Rule 7-1(18) that is was not intended to provide broad discovery of documents from non-parties, but rather a mechanism by which parties can access specific documents or classes of documents when it has been demonstrated that they are in the possession or control of a non-party and are relevant to an action [18] The threshold question on this application is whether Heinz's capacity, or lack thereof, to enter into a spousal relationship at the time when he consulted with Ms. Lane is relevant to the issue of his capacity to enter into a spousal relationship from and after 2006. [19] The short answer to this question is "no". [20] The notice of application sets out the rationale for seeking disclosure of the Solicitor's File as follows: The Solicitor's File is significant as a record of Ms. Lane's discussions and observations of the Deceased and his mental functioning. It is apparent that Ms. Lane was alive to the issue of the Deceased's capacity. Although Ms. Lane did not attend to the execution of a new will, any discussions the Deceased had with Ms. Lane would be closely related to the question of whether the Deceased had capacity to enter a marriage-like relationship. [21] The capacity to marry, or to enter into a marriage-like relationship, does not equate to the capacity to manage property or to make a will. At law, there is a much lower threshold of capacity to enter into a relationship than to make a will or grant a power of attorney. Ms. Lane's evidence, which I accept, is that she would never use the lower threshold as the test for capacity to make a will or power of attorney. Ms. Lane does not assess capacity to enter into a marriage-like relationship when assessing capacity to make a will or power of attorney. [22] Further, seeking disclosure of Ms. Lane's file to "look through" it to see if anything relevant emerges is a classic fishing expedition, unsupported by evidence of relevance. 2. Does Rudiger have the legal authority to waive the privilege that attaches to the communications between Heinz and Ms. Lane? [23] Brigitte does not challenge the validity of the Will. She does not allege that the Will was made under undue influence, or that Heinz lacked testamentary capacity. Although the notice of application states that Heinz went to see Ms. Lane for the purpose of "estate planning", in oral submissions, counsel for Rudiger and Rainer withdrew that claim, conceding appropriately that Heinz consulting Ms. Lane regarding a power of attorney was not "estate planning". Accordingly, the applicants do not rely on the "wills exception" line of authorities which address the circumstances in which the court may order a solicitor's estate planning file to be disclosed to a representative of a deceased. [24] Not being able to rely on the wills exception to seek disclosure of the Solicitor's File, Rudiger and Rainer take a different approach. They say that they have the right (or, more properly, Rudiger has the right as the executor of Heinz's estate) to see Ms. Lane's file because Rudiger steps into Heinz's shoes and can waive solicitor client privilege on behalf of Heinz. [25] Before turning to the merits of the argument just summarized, it is important to describe the process Rudiger and Rainer took to obtain disclosure of the Solicitor's File because I find that that process was problematic for several reasons. Counsel for Rudiger and Rainer initiated the request for Ms. Lane's file by a letter to her dated November 14, 2024. Ms. Lane responded by letter dated November 19, 2024 stating that her firm did not do Heinz's will and that the case law did not permit her to disclose the contents of the file pertaining to a power of attorney. She referred counsel to DeCotiis v. DeCotiis Estate, 2024 BCSC 892. [26] Rudiger and Rainer left the matter until more than a year later when counsel for Rudiger and Rainer wrote Ms. Lane on January 30, 2026 reiterating the demand and giving Ms. Lane seven days to respond or they would seek a court order for production of the file. It is important to pause here and express the court's disapproval of the unreasonable demand for Ms. Lane's response in seven days. First, Rudiger and Rainer let the matter drop for over a year and now expected Ms. Lane to respond within seven days. Second, Ms. Lane is not Rudiger and Rainer's adversary. She did nothing wrong in declining to provide access to her file. On the contrary, she acted entirely appropriately and in accordance with her understanding of the case authorities. Making a demand for a response within seven days was unreasonable and reflects poorly on the professional courtesies that the court expects from counsel. If clients demand that their lawyer act unreasonably, counsel should refuse those instructions. [27] I return to the narrative. On February 5, 2026, Ms. Lane wrote counsel for Rudiger and Rainer outlining her concerns with the production of her file. She confirmed, correctly, that the production of the file did not fall into any of the "wills exception" categories. Given the concession in oral submissions that the "wills exception" does not apply, the notice of application should not have included it. Doing so created unnecessary confusion. [28] Ms. Lane went on to say in her letter of February 5, 2026: If the issue in dispute, as set out in your letter, is the Deceased's capacity to enter into a marriage-like relationship and all the consequences that flow from doing so, then this is a far different issue respecting capacity. This is not testamentary capacity. I agree with Ms. Lane's position. [29] Ms. Lane said further in her letter of February 5, 2026 that she needed time to review the case law and time to speak to a practice advisor with the Law Society of British Columbia. Given the reasonableness of Ms. Lane needing time to take these steps makes the arbitrary deadline to respond even more objectionable. [30] Ms. Lane's letter of February 5, 2026 was not referred to in the notice of application or included in the applicants' affidavit materials as it ought to have been for completeness of the evidentiary record. [31] Counsel for the applicants sent Ms. Lane an email dated Thursday, February 5, 2026 giving her until Monday, February 9, 2026 at 12:00 noon to respond. This type of pressure on Ms. Lane, who was acting entirely professionally throughout, was entirely uncalled for. Ms. Lane refers, appropriately, to the provisions of the Code of Professional Conduct for British Columbia that require a lawyer to maintain confidentiality and to claim privilege in respect of a document that is or may be privileged. [32] I turn now to the argument that Rudiger has the right to waive solicitor client privilege on behalf of Heinz. Rudiger and Rainer rely on s. 142(1) of WESA for the proposition that Rudiger has authority over Heinz's estate which includes the right to waive solicitor client privilege. Section 142(1) states: 142(1) A personal representative has the same authority over the estate in respect of which the personal representative is appointed as the deceased person would have if living, subject to (a) a contrary intention appearing in the will of the deceased person, and (b) this or any other enactment. [33] In Stapleton v. Doe, 2017 BCSC 12, the court considered s. 142(1). At para. 30, Master Wilson (as he then was), stated: [30] I conclude that the plaintiff as the personal representative of the deceased has authority over the estate which includes the right to waive the solicitor-client privilege that belonged to the deceased prior to his death. The fact that a part of the plaintiff's claim is brought in her personal capacity does not detract from the rights she has as the deceased's personal representative. The applicants rely on this passage for the proposition that a representative of the estate of a deceased may waive solicitor client privilege that attaches to the communications between a deceased and their solicitor even without invoking the wills exception framework. [34] This argument misconstrues Stapleton. A personal representative cannot waive all solicitor client privilege no matter the subject of the communications between solicitor and client. Stapleton involved issues of testamentary capacity and intentions of the deceased; in other words, involved a consideration of the wills exception which does not apply in the present application. [35] Cases decided after Stapleton clarify its scope as noted by Ms. Lane in her correspondence to counsel for the applicants. [36] The authority of a personal representative is not unlimited. Courts have limited the ability of personal representatives to access privileged information they do not require to complete the duties they have undertaken: Becker v. Hagehassan, 2021 BCSC 1508 at para. 18. An administrator's authority to waive privilege is qualified by the purpose of their appointment which is to administer the estate: Becker, para. 23. Here, the applicants seek to waive privilege in order to gather evidence to defend Brigitte's claim to vary the Will, not to administer the estate. [37] In Dumke v. Conrad, 2019 NSSC 310, the personal representative requested the solicitor's file in a litigation dispute between the deceased and the personal representative. The personal representative relied on Stapleton to argue that he had the absolute right to the file as he now stands in the place of the deceased. The court disagreed, finding that, as in Stapleton, the file must be relevant to the ability of the personal representative to exercise his authority as the administrator of his mother's estate: 19 A deceased person could have criminal files, child protection files, divorce files, etc. If a person seeking advice from a lawyer knew that, after their death, their children would have access to those files, the free, confident, candid communication necessary between a lawyer and client would not occur. The court went on to cite Descôteaux et al. v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 860, citing an 1885 decision: The privilege protecting from disclosure communications between solicitor and client is a fundamental right - as fundamental as the right to counsel itself since the right can exist only imperfectly and without the privilege. The Courts should be astute to protect both. As long ago as Pearson v. Foster (1885), 15 W.B.D. 114, Brett, M.R., warned that free and confident communication within the solicitor-client relationship is so vital a part of the right to counsel that the privilege ought not to be 'frittered away'. [38] The applicants seek to distinguish Dumke on the basis that the applicant in that case was an administrator of the estate and not an executor, and because the case is from Nova Scotia and not British Columbia. Neither of these objections is persuasive. An administrator is appointed where there is no will. There is no meaningful distinction between an administrator and an executor for the purposes of this application. Dumke refers to Stapleton which is a British Columbia decision. The statutory framework of both provinces is so similar that the court will look at case authorities from other provinces for guidance. In any event, I am persuaded that the analysis provided by the court in Dumke is sound and should apply in British Columbia. Conclusion [39] The application is dismissed. Costs [40] The Law Firm is entitled to its costs. As there is no cause that can affect an order for costs against a non-party, they should be payable forthwith: Bowman v. Kimberly-Clark Corporation, 2024 BCSC 1975. "Associate Judge Harper"