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October 23, 2008

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Michelle

I am a Canadian lawyer and although I am currently non-practicing, both the online will kits and the mail order ones concern me. I know many in the public would think that our only concern is that we might lose the fees from a few clients but like you said, there are too many situations they just don't cover. For example, my particular interest is in legal matters for persons with special needs and, at least in Canada, you had better draft a trust provision carefully if you don't want to see a disabled beneficiary lose all their government benefits.

I have also wondered if they don't constitute the unauthorized practice of law, but I have assumed (perhaps wrongfully) that if there was a valid case some bar association or attorney somewhere would be on it.

Andrew

Everyone would like to think that when they have a capable attorney draft a legal document, like estate plans, that such an instrument will stand up in court, but there are so many cases where valid documents have been contested. A glaring example is obviously Marshall v. Marshall (or more commonly referred to as The Anna Nicole Smith case). Anna Nicole's billionaire husband J. Howard Marshall had executed ample estate planning documents that knowingly omitted Anna from his will. Marshall was choosing to provide for Anna with the gifts that he gave her during his lifetime (which were ample, including pieces of real estate, multiple vehicles and hundreds of thousands of dollars in jewelry). Of course in classic gold-digger fashion that was not enough for Anna and she shopped around her claim for a piece of the Marshall estate to every court that would take her. This was clearly forum-shopping at its most blatant, and she did receive a favorable ruling from a CA bankruptcy court...after all she was contesting a will executed in Texas so why wouldn't a CA bankruptcy court have jurisdiction? Despite all the work Marshall put into his estate planning Anna managed to contest the will for 14 years. Fast forward all the way to the Supreme Court and the matter was remanded to the 9th circuit but Anna did not survive to see the matter resolved, one can only hope that the father of her daughter does not pursue this frivolous claim and the original will of Howard Marshall is allowed to stand as it should have in the first place. If a judge were to err and award Anna's estate any piece of the Marshall estate it would effectively turn estate planning on its ear and set an incredibly dangerous precedent.

Elizabeth Randisi

Andrew,

What I find most interesting about the Anna Nicole Smith case is that Mr. Marshall was himself an estate attorney, and actually taught trusts and estates at a law school!

I do agree with you that even experienced practitioners can get it wrong, and even a well planned estate can be subject to litigation by disgruntled heirs.

My biggest concern is that, although attorneys are subject to extensive regulation of their activities, there is no oversight that I know of over online providers. Where is the accountability?

noodlemonkey

bravo, andrew!

MJP

Great points, Andrew. It's frightening to think that even if your will is crafted perfectly, it can still be subject to greedy ex-inheritees.
Elizabeth, I think that online wills are even more highly suseptable to such manipulation. However, for those on a budget, they could be a good place to start. By drafting your own will from a form, but getting the draft reviewed by a barred lawyer, somene can potentially save on costs but still have a legitimate will.

Elizabeth Randisi

Interestingly enough, I saw a commercial on television over the weekend for an online legal document provider. The spokesperson was a prominent attorney who (according to my search of the nycourts.gov website) does not appear to be licensed to practice in New York. My concern is that ordinary folks will think this person is representing them somehow when they purchase an online package. Any thoughts?

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