The New York Legal News Round Up
Define That Term #300

The Curious Phenomenon of the e-Will

 

Erandisi_2_2_2 A new client was recently referred to me by a colleague. The client had gone online and prepared her own Will, and my colleague was concerned that it might not be valid. I reviewed the client’s draft Will, and although it was awkwardly written and contained provisions that probably did not need to be included, it was, on its face, a valid New York Will.

I contacted the client to let her know that her online Will was fine, but that I would prefer to prepare a new one using my own format. (Due to various circumstances, there would have been no cost to the client). The client declined. She wanted to use the Will that she had created online, and wanted to come in to my office merely to have my paralegal and me serve as witnesses.


My husband (also an attorney who does a great deal of estate planning) and I visited with a close family friend earlier in the year. The friend was a successful, middle-aged woman who had recently come out of early retirement. She took obvious pleasure in telling us, repeatedly, that she had prepared her Will on the Internet and had thereby “escaped” the use of an attorney.


I just upgraded my personal financial software to a 2008 version. In addition to the updated bookkeeping software, I now have the company’s Will-drafting software installed on my computer. From a few minutes’ investigation, it looks like a Will created using the software would be adequate for some, but not all, of my clients.


These incidents bother me and I wonder if other attorneys have noticed a similar trend. I am sure that in many cases, a generic online document will serve a client well, and for fees that are much lower than the ones charged by attorneys.


I am more concerned about the few cases where an online document provider may completely miss the mark on a client’s estate plan. Revocable Living Trusts that are created but never funded come to mind immediately.


One website has a disclaimer stating that a client needs a lawyer if he or she will leave an estate worth more than $2 million, because then federal estate tax might be due. But in New York, the estate tax exemption is only $1 million – a $2 million estate might owe $100,000 to the State!


In addition, I frequently prepare additional documents as part of a client’s estate plan: Health Care Proxies, Living Wills, Powers of Attorney, Standby Guardian and Successor Custodian designations, and Health Care Proxies for the client’s minor children. What if the software does not prompt the client to create these documents?

 

Now many of these pitfalls could occur where a “real live” attorney prepared the client’s estate plan as well. However, when an individual attorney is involved, the client has recourse to the Attorney Grievance Committee, among other remedies. What is the client’s recourse if the “e-attorney” is wrong? Does this constitute the unlicensed practice of law? And what should the bar’s response be? Should I witness the first client’s online Will or persuade her to use one that I have drafted? I would appreciate comments from practitioners in all fields. 


-Authored by Elizabeth Randisi, a Rochester, New York attorney associated with the law firm WeinsteinMurphy.  Her practice focuses on Trusts and Estates and elder law.

Comments

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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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