Argued September 19, 2013.
6th Circuit Court -- Concord Probate Division.
Roy S. McCandless, Esq., P.L.L.C., of Concord ( Roy S. McCandless on the brief and orally), for Stephen Stompor.
Seufert, Davis & Hunt, PLLC, of Franklin ( Christopher J. Seufert on the brief and orally), for Stan Stompor.
CONBOY, J. DALIANIS, C.J., and HICKS, LYNN and BASSETT, JJ., concurred.
The petitioner, Stephen Stompor, seeks a writ of certiorari, see S.Ct. R. 11, challenging an order of the 6th Circuit Court -- Concord Probate Division ( Hampe, J.) granting the petitioner and his brother, the respondent, Stan Stompor, access to the file of an attorney who drafted estate plan documents for their parents, Broneslaw and Amelia Stompor (the parents). We affirm.
[165 N.H. 737] The following facts are drawn from the record. In 2001 and 2002, the parents met with an attorney (the Attorney) regarding their estate plans. The Attorney drafted estate plan documents for them; however, due to a conflict, the Attorney subsequently withdrew from representing them, and the estate plan documents were not executed.
In 2004, the petitioner wrote to the Attorney to inquire whether the Attorney would again represent the parents with regard to their estate plans. The Attorney declined to do so. The petitioner then helped the parents prepare certain estate plan documents, and the parents executed those documents in October 2004. Although these estate plan documents are not included in the record on appeal, the petitioner represents, and the respondent does not dispute, that they include wills that bequeath the parents' assets to the petitioner and his family to the exclusion of the parents' other children. The documents include the Broneslaw J. Stompor Living Trust, of which the petitioner is a co-trustee. That same year, the parents also gave the petitioner powers of attorney to act as their agent.
In October 2007, the respondent filed a petition in the probate division, on the parents' behalf, pursuant to RSA 506:7 (2010), seeking to determine the legality of certain acts of the petitioner and requesting, among other things, an accounting of the petitioner's handling of all of the parents' funds either personally or as a trustee of his father's living trust. In June 2009, the respondent successfully moved to amend his petition to allege that, in 2004, the petitioner, as the parents' fiduciary, exercised undue influence over the parents when they lacked the capacity to understand the estate plan documents that gave the petitioner and his family exclusive inheritance rights to the parents' assets to the exclusion of the parents' other children. The respondent sought to have the petitioner removed as the parents' fiduciary and to void all actions taken in his fiduciary capacity. The parents passed away during the late summer of 2009.
In February 2010, while his petition was still pending, the respondent sought disclosure from the Attorney of any information he had regarding his contact with the parents in connection with the challenged 2004 estate plan. The petitioner objected, arguing that the attorney-client privilege prohibits disclosure of any documents the Attorney has relating to his consultations with the parents. Thereafter, the court granted the parties' assented-to discovery motion allowing the Attorney to submit, for in camera review, any files he had " concerning [the parents'] estate plan documents signed in 2004." The court reviewed the file and held a hearing. At the December 1, ...