Background Facts
Robert Harrison Ashworth died on December 22, 2022. In 2017, when he was in the early stages of Alzheimer’s disease, Ashworth executed a will that named his son, Brian, as his estate’s personal representative. The will divided Ashworth’s estate evenly among his four children: Christine, Gwendolyn, Brian, and Kimberly. Then, in early 2022, Ashworth executed a new will that named Christine as the personal representative and included only Christine and Gwendolyn as beneficiaries. The 2022 will excluded Brian and Kimberly from any inheritance.
In the years between the execution of the two wills, Ashworth’s memory and ability to live independently declined as conflict among his children intensified. Brian and Kimberly ultimately lost contact with Ashworth. Christine and Gwendolyn maintained control over Ashworth’s care and were allegedly present during the signing of the 2022 will.
After Ashworth’s death, Christine submitted the 2022 will for probate. Brian contested its validity and sought access to medical records from the last eight years of Ashworth’s life, starting from the first time he was diagnosed with declining mental faculties. Brian claimed that the records would shed light on Ashworth’s decision-making capacity (or lack thereof) at the time he executed his final will. Christine, however, refused to provide any medical records, citing the physician-patient privilege. The trial court considered written motions from both parties before ordering Christine to provide the medical records for an in camera review, stating that the court would “not release any records which are not related to the mental capacity of the decedent.”
The Supreme Court of Colorado stated in its decision dated June 10, 2024: “This court has never expressly held that the physician-patient privilege extends beyond the death of the patient, but we have made clear that the attorney-client privilege does. See, e.g., Wesp, 33 P.3d at 200; Rabin, 474 P.3d at 1220; see also Swidler & Berlin v. United States, 524 U.S. 399, 407 (1998) (“Posthumous disclosure of [privileged] communications may be as feared as disclosure during the client’s lifetime.”). Noting the privileges’ similarities in purpose and operation, we hold that the protections of the physician-patient privilege continue after the privilege-holder has died.”
However, the Supreme Court of Colorado further held: “Medical records can play a vital role in contested probate proceedings when the deceased’s mental capacity prior to passing is in question. Sometimes, though, when one party to a will dispute seeks to introduce medical records of the deceased, the other party resists disclosure, asserting that the records are protected by the physician-patient privilege … We hold that the physician-patient privilege survives the privilege holder’s death, but that the testamentary exception provides for disclosure of the decedent’s privileged medical records if they are required to administer the estate.”
IN RE: the Estate of: Robert Harrison Ashworth, Supreme Court Case No. 24SA19.
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