Edmonds

Rarely does a probate matter find its way into federal court. Here we are presented with a will contest involving a member of an Indian tribe in a Department of the Interior probate proceeding where we must decide whether state or federal law of evidence applies.

I

Matilda Covington, a Colville Indian, 1 died on July 13, 1999. On July 9, 1999, shortly before her death, Covington executed a will leaving all her Indian trust allotments to her great-grandson, Brandon Austin Francis, a minor. 2 Covington’s children predeceased her and she left no property to her three living grandchildren. The will listed one of Covington’s grand *919 children, Jolene Francis&emdash;the mother of Brandon Austin Francis&emdash;as the decedent’s personal representative for purposes of administering the estate. Jolene Francis is also listed as a contingent beneficiary for the trust property. Staff attorneys from the Colville Tribal Legal Services (“CTLS”) assisted Covington in drafting her will.

Two of Covington’s grandchildren&emdash;De-bra Palmer and Robert Francis&emdash;contest-ed her will alleging that she lacked testamentary capacity and was subjected; to undue influence. The Department , of the…

dissenting:

Although I agree with the majority’s framework for interpreting the Department of Interior’s governing regulation in Part II, I disagree with the majority’s analysis in Part III, which for me is the crux of the case. In Part III, the majority holds that because no Washington case or statute has adopted the testamentary exception to the attorney-client privilege, the exception is not a “generally accepted” rule of evidence as required by 43 C.F.R. § 4.232 (a). The majority then concludes that the general attorney-client privilege, set forth in Wash. Rev.Code § 5.60.060(2)(a), is a “generally accepted” rule of evidence that prevents disclosure of the subpoenaed documents.

The discovery of these documents is not merely technical, nor is an error on the scope of attorney-client privilege here likely harmless. It goes to justice between the parties, as the quashed discovery might have shed light on whether a testator who in old age cut her grandchildren out of her will and left everything to a single great-grandchild may have been of unsound mind or unduly influenced in the revision of her will. On the other hand, if the discovery shows nothing of this, then it benignly…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: THE ESTATE OF MATILDA  COVINGTON, Deceased Colville Indian 101-A1273 IP SA 73 N 01,

JAMES EDMONDS, Colville Tribal Legal Services, Petitioner-Appellee, No. 04-35449 v.

WILLIAM E. HAMMETT, U.S.

 D.C. No.

CV-03-00197-FVS

Administrative Law Judge, Office OPINION of Hearings and Appeals, Department of the Interior; MICHAEL J. STANCAMPIANO, Indian Probate Judge, Office of Hearings and Appeals, U.S. Department of the Interior, Respondents-Appellants.  Appeal from the United States District Court for the Eastern District of Washington Fred L. Van Sickle, Chief Judge, Presiding

Argued and Submitted March 8, 2006—Seattle, Washington

Filed May 25, 2006

Before: Diarmuid F. O’Scannlain, Barry G. Silverman, and Ronald M. Gould, Circuit Judges.

Opinion by Judge O’Scannlain; Dissent by Judge Gould

5811 5814 IN RE: THE ESTATE OF COVINGTON

COUNSEL

Katherine J. Barton, Environmental and Natural Resources Division, United States Department of Justice, Washington, D.C., argued the cause for the appellants. Thomas L. Sanso- netti and William H. Beatty,…