When Patrick Steele died in 2022, he left behind a revocable trust directing that up to $5 million be distributed to “my nieces and nephews.” Simple enough — until nobody could agree on who that actually meant. His widow, acting as trustee, argued the phrase covered both his biological family and her family, twenty-nine people in total. His biological nieces, nephews, and sister argued it meant his side only. To settle the question, the biological family did something the trustee did not expect: they subpoenaed the law firm that drafted the trust, seeking every document related to Patrick’s estate planning. The trustee said no. The trial court said yes. And in February 2026, the North Carolina Court of Appeals said yes too.
The legal concept at the center of Steele v. Kenna is called the testamentary exception to the attorney-client privilege. Normally, what a client tells his attorney stays private — even after the client dies. But there is a recognized carve-out: when the dispute is over who takes from a deceased person’s estate, neither side can use the privilege to hide what the decedent told his lawyers. The idea is that a client who goes through the trouble of estate planning impliedly authorized disclosure of those communications so his wishes could actually be carried out. North Carolina courts had previously applied this exception to will contests. Steele v. Kenna extended it to trust disputes for the first time.
Here is what makes this decision worth paying attention to: the trustee was not just asserting the dead man’s privilege — she was also a client of the same firm, and she argued her own privileged communications were tangled up with his. The court was unimpressed. The testamentary exception operates by treating the grantor as having waived the privilege, and the identity of whoever is now holding that privilege on his behalf does not change the analysis. If you are a trustee or a beneficiary involved in a dispute over what a grantor meant, the communications between that grantor and his drafting attorneys are fair game — and your ability to block that discovery is more limited than you might think.
Trust and estate disputes in North Carolina increasingly turn on what a grantor said — or did not say — to his attorneys. Steele v. Kenna confirms that those conversations are not protected from discovery when the litigation is about who gets what. If you are a trustee navigating a contested trust, a beneficiary challenging a distribution, or a family in the middle of an estate dispute, the stakes of that discovery fight matter enormously. At Lord & Lindley, we help clients navigate trust and estate litigation from the first subpoena to final judgment. Call (704) 457-1010 or visit www.lordlindley.com to learn more or schedule a consultation.