dissenting in part and concurring in part.
I respectfully dissent in part and concur in part. In doing so, I am not unmindful of the adage that bad facts make bad law. This adage applies no less to my opinion than to the others filed herein.
I.
The majority is correct in concluding that the Petition to Reinstate Personal Representative, standing alone, fails to plead sufficient facts to state a cause of action under § 473.147.2. However, the record below contains more. The Corrigan heirs also filed an affidavit of Michael G. Gold-stein 1 which, if considered along with the petition, would state a claim under the statute. Because the issue below was not resolved on the pleadings, but was actually joined and decided on the substantive merits of the claims made, I believe it is appropriate to treat the Corrigan heirs’ petition as amended to conform to the evidence presented. See Rule 55.33(b), Mo.R.Civ. Proc.
I would hold that “good cause” for reopening an estate may be found where it is necessary to examine attorney files for factual information relating to work done for the decedent in order to further the interests of the decedent. In such a circumstance, factual information is an asset of the estate that must be administered by a decision regarding whether to waive the attorney-client privilege and disclose the information. The information is newly discovered because it was and is in the possession of attorneys who represented the estate, who now object to its disclosure, and who made no showing that they presented the issue to the personal representative for a decision (administration of the assets) while the estate was open.2 Accordingly, I dissent from the opinion of the majority holding that the probate court was without jurisdiction to hear the Motion for Order Compelling Access to Information.
I believe, however, the probate court exceeded its jurisdiction by ordering that the documents at issue be produced upon the record before it. The Corrigan heirs, here acting as personal representatives, have not established that disclosure of these documents will protect or further the interests of the deceased, Thomas J. Corrigan, which should be the primary focus of inquiry.
II.
It is admitted by Armstrong Teasdale that they possess certain documents in connection with their past representation of Mr. Corrigan. Documents containing actual information concerning Mr. Corrigan’s desires or decision-making considerations may possess value regarding the proper interpretation of the legal instruments executed by him.3
At his death, Armstrong Teasdale is bound by two conflicting duties regarding the disclosure of attorney-client information obtained in the course of their representation of Mr. Corrigan. One of those duties is set out in our Rule of Profession*91al Conduct 4-1.16(d), which states as follows:
Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law. (Emphasis added.)
Another duty is to assert on Mr. Corrigan’s behalf the attorney-client privilege to the extent that disclosure of the papers would harm his interests. Rule 4-1-6.
Mr. Corrigan obviously is not available to speak for himself. We must assume that his purpose in seeking Armstrong Teasdale’s legal services was to create a trust plan that would accomplish his goals. We must further assume that by executing the various wills and trust instruments, he believed that they would carry out those goals.
If his heirs seek this information for the purpose of contesting such documents, it is doubtful that Mr. Corrigan’s interests would be served by disclosing them. It was his right, not his heirs’, to dispose of his property as he saw fit. It was his right to subject the property disposed to a complex series of trusts, if he so chose.
To the contrary, if the heirs seek to modify the trusts to better accomplish his purposes, or to make a claim against his lawyers for a failure to use the appropriate standard of care in attempting to accomplish Mr. Corrigan’s purposes,4 disclosure might, in fact, serve his interests.
The extent to which the attorney-client privilege precludes the disclosure of a deceased client’s statements or documents has not been stated consistently by the courts. See 66 A.L.R.2d 1302. The topic was most recently addressed by this Court in Pasternak v. Mashak, 428 S.W.2d 565 (Mo.1967), cert. denied, 390 U.S. 907, 88 S.Ct. 821, 19 L.Ed.2d 872 (1968). There, it was stated that:
The attorney-client relationship having terminated with the death of the testatrix would have been no bar to proponent’s testimony.
Id., 428 S.W.2d at 569. In Koontz v. Owens, 109 Mo. 1, 18 S.W. 928 (1892), however, the Court indicated that the privilege should apply against a person contesting a deed involved in an estate plan. There, the Court stated:
If the communications made by a man to his attorney in the privacy of his office, just on the eve of finally disposing of all his worldly goods, when he must have his property in mind and desires to know the effect of his devises, are admissible, then the rule has little to commend it.
Id., 18 S.W. at 929.
While the language of these cases appears contradictory, an examination of their particular facts reveals otherwise. In Pasternak, the evidence introduced was supportive of the decedent’s will and was used against an undue influence challenge. 428 S.W.2d at 568. In Koontz, the evidence proposed would have been detrimental to a will drafted by the attorney and, if admitted, “would destroy the practical effect of his own work.” 18 S.W. at 929. When read together, these cases stand for the proposition that the attorney-client privilege survives the death of the client, but it can and should be waived if it can be shown that a waiver is in the best interests of the decedent.
While the Corrigan heirs have established their possible need for these documents, they have not established whether the disclosure of the documents at issue would serve or harm the interests of Thomas Corrigan. As such, the probate court acted in excess of its jurisdiction in order*92ing Armstrong Teasdale to provide the documents to the Corrigan heirs upon the record before it.
The necessary record cannot be made without an objective examination of the documents at issue. Given the history of this case, none of the parties to this matter are in a position to make an objective examination. Accordingly, prior to any order of disclosure of these documents to the Corri-gan heirs, the probate court should order that copies of all documents containing historical information (as opposed to documents that solely reflect attorneys’ thoughts and work process) be produced, in camera, or to a master appointed by the trial court, to determine whether Mr. Corri-gan’s interests would be protected or furthered by disclosure. This may well be a difficult decision because the evidence may be mixed. Because a waiver of the attorney-client privilege as to some documents usually constitutes a waiver as to all documents, the decision might require a delicate balancing. Only if the court or the master determines that the privilege should be waived may the documents be made available to a properly interested party. The costs of this examination, of course, should be assessed to the Corrigan heirs seeking the disclosure of the documents.
ATTACHMENT
IN THE PROBATE DIVISION OF THE CIRCUIT COURT
ST. LOUIS COUNTY, MISSOURI
In re: The Estate of
THOMAS J. CORRIGAN, SR.,
Deceased.
Estate No. 84951
AFFIDAVIT OF MICHAEL G. GOLDSTEIN
Comes now Michael G. Goldstein, first being duly sworn, and state upon his oath:
1.My name is Michael G. Goldstein. I am a partner and vice chairman of the Tax and Estate Planning Department at the law firm of Husch & Eppenberger. I have personal knowledge of the facts in this affidavit.
2. I have been practicing law in the area of tax and estate planning for 22 years. I am a Fellow of the American College of Trust and Estate Counsel and the American College of Tax Counsel. Further, I have lectured nationally and have written several books and articles on tax and estate planning matters.
3. In October 1989, I was engaged by Corrigan Brothers, Inc. and its then related corporations (“Company”) and the Corrigan family to provide tax and estate planning services to the Corrigan family and the Company.
4. The estate plan created for Thomas J. Corrigan, Sr. (“Decedent”) is comprised of numerous trusts and sub-trusts which cause significant complexities to the plan. An outline of the estate plan, with its attendant trusts and sub-trusts is attached as Exhibit A. In my 22 years of practice, Decedent’s estate plan is .one of the most complicated that I have seen.
5. In order to give proper advice to both the Company and the Corrigan family with respect to tax and estate planning issues, it is necessary for me to understand Decedent’s estate plan. These complexities must be understood in order to advise the Company, because almost all of the Company stock is held by the various trusts. These complexities must be understood in order to advise the Corrigan family, because a significant portion of their estates’ value are included in the trusts.
6. I have reviewed the final documents which comprise the estate plan. Those documents do not, in my judgment, fully explain either Decedent’s intent or the purpose or many of the aspects of this complex estate plan. There are many aspects of the plan for which I need collateral information in order to determine these matters. Such intent could be reflected in memoranda and notes contained in the files that were maintained by his legal counsel.
7. In reviewing the estate plan, I concluded that simplification of the plan, to the extent consistent with Decedent’s wishes, would be beneficial not only to the Compa*93ny but to the Corrigan family members. A simplified structure could reduce administration cost, possible future litigation brought by heirs, and assist the family in operating the Company.
8. Prior to Decedent’s death, from January 1985 through June 1985, Decedent’s counsel, then Armstrong, Teasdale, Kramer & Vaughn (“ATKV”) engaged in numerous activities with regard to various tax and estate planning matters. In order to understand what issues were raised by ATKV, I reviewed copies of ATKV’s invoices, which are attached to this Affidavit as Exhibit B. In my review of the invoices, I found several entries indicating discussions with Decedent, and Decedent’s desires with regard to the future of the Company. The bills also reflect the creation of numerous documents relevant to interpreting and understanding Decedent’s estate plan. By way of example:
(a) On January 29, 1985, Mr. Corrigan had a conference at the Noonday Club with ATKV regarding the Company’s class A voting stock.
(b) On February 1, 1985, Mr. Corrigan had a telephone conference with ATKV regarding “provisions of trust for A stock.”
(c) On April 1, 1985, an ATKV memorandum was issued concerning proceeding with “project per conversation with Tom Corrigan on 3-29-85.”
(d) On April 2,1985, an ATKV memorandum regarding recapitalization was prepared.
(e) On April 5, 1985, a letter was sent “regarding decision of whether to recapitalize.”
(f) On April 23, 1985, ATKV prepared for a meeting re recapitalization.
(g) On April 24, 1985, there was a meeting at ATKV’s office regarding possible recapitalization of the Company.
(h) On April 25, 1985, ATKV prepared a memorandum regarding the April 24 meeting.
(i) On April 26, 1985, ATKV had a meeting regarding additional ideas for freezing value of Company.
(j) On April 29, 1985, an ATKV memorandum concerning additional points about recapitalization was prepared.
(k) On April 29,1985, there was a conference at the Noonday Club with Decedent concerning benefits and disadvantages of recapitalizing the Company and other matters.
(l) On May 8, 1985, there was a meeting at University Club with Decedent and certain Corrigan family members concerning long range plans for the Company.
(m) On May 9, 1985, ATKV prepared notes on the May 8 meeting regarding long range plans for the Company.
(n) On May 9, 1985, there was an interoffice conference of ATKV’s attorneys concerning problems with a plan for disposition of stock.
(o) On May 10, 1985, there was a review of ATKV memorandum and ATKV prepared a memorandum relating to matters to be considered.
(p) On May 17, 1985, there was an analysis of the results of a May 8 meeting and there was a review of ATKV memorandum of suggestions for next step in planning.
(q) On May 28, 1985, there was a conference concerning long range plans for stock ownership.
(r) On May 29, 1985, ATKV prepared notes of a meeting on May 28.
(s) On June 4, 1985, there was a conference regarding the recommendations of long range plans, meetings on long range plans, and ATKV notes concerning the two meetings.
(t) On June 5, 1985, ATKV prepared notes concerning points made on June 3 long range changes and ATKV prepared notes concerning a meeting along with a memorandum concerning possible call option in Company on class A stock.
(u) On June 6, 1985, there was a review of material concerning long range planning.
*949. I have never seen the notes and memoranda referred to in the various billing invoices that reflect discussions with the Decedent. Furthermore, I was totally unaware of any advice rendered concerning call options and recapitalization of the Company.
10. It is imperative that I have access to all Corrigan files in order to determine whether there is information contained in those files that would adequately indicate the intent of the Decedent at the time of the meetings and telephone discussions concerning recapitalization of the Company and call options on its voting stock. Without such access to such files, it will be very difficult for me to provide adequate advice concerning tax and estate planning matters for the Company or the Corrigan family, consistent with Decedent’s intent; or to devise some method of simplifying the estate plan consistent with Decedent’s intent.
AFFIANT FURTHER SAYETH NOT.
/s/ Michael G. Goldstein Michael G. Goldstein
STATE OF MISSOURI
COUNTY OF ST. LOUIS
On this 8th day of May, 1992, before me personally appeared Michael G. Goldstein, who being by me first duly sworn, did state that the statements made in this Affidavit are true to the best of his knowledge, information and belief.
Subscribed and sworn to me on the date and year last above written.
/s/ Linda I. Rands
Notary Public
My commission expires:
. As will be discussed, Armstrong Teasdale’s behavior in refusing to disclose this information may be entirely appropriate.
.Documents containing actual information concerning Mr. Corrigan's desires should be distinguished from mere lawyers’ working papers.
. The purpose for which the Corrigan heirs seek these documents is unclear. In Corrigan /, the Court understood the documents were to be used to determine if a malpractice action might exist. 824 S.W.2d at 99. In this proceeding, such a purpose was expressly disavowed and the reason stated for seeking the documents was to assist in interpreting the various trust instruments.