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The risk with an AI-generated will: why lawyer-drafted wills remain best practice & the importance of empathy


A robot professional is sitting at a desk with a human client. The Robot appears to be restraining the client by holding his arm.


 


Have you been inundated with advertisements for AI Generated online wills?

There has been an explosion both in these types of ads, and the businesses offering AI generated wills. My aim is not to equate AI with bad, but to highlight the issues which may arise from using an automated service for a document which will be one of the most important documents you ever create.


The ads claim they are 'quick' and 'legal', and that they remove the cost of seeing a lawyer. They spruik ease to the client, low cost, and importantly, that the client will get the outcome they want.


But ‘cheap’ and ‘simple’ also means compromise. I hear many excuses why a client only needs a ‘simple will’ without comprehensive advice - usually because it’s ‘going to my [spouse/children]’. This invariably leads to a discussion where we find the client has circumstances which are real world and not text book simple. Just because a client doesn’t call a friend their ‘de facto’ doesn’t mean that a court won’t.


What AI does well

AI gathers initial information quicker than any person, and this will only get better. It can transform that information into tables and usable data. So yes, AI does fast, and it does data really well.


But the output is only as good as the client's responses to the prompts. And if a client does not know or answers wrong, there may be a cascade of assumptions which affect the end result.


The same initial questions from a living lawyer will probably generate the same responses and yes, it will take longer. But where an AI requires a client to prompt them, the lawyer will be able to read a client's body language, their tone, even their pauses, and we can follow up on them to generate more input from the client. That, and they can empathise.


Lawyer Drafted Wills & the Use of Empathy

Empathy can be described as the ability to understand and share feelings with others.


It can be less important when drafting commercial documents between global companies, but at the other end of the spectrum with personal documents such as your will, empathy is essential to getting it right.


When we discuss your personal circumstances, my experience says that empathy is key to understanding what drives or motivates you in creating your plan: want you want to achieve & why it is important to you to achieve it. Empathy helps me identify the risks you feel more comfortable taking and can identify which advantages & disadvantages to your plan may be more important to you. AI lacks empathy, understanding, and initiative. It can never weigh up your subjective risk profile because emotional drivers don't have to be logical to be important.


What can’t an AI do

AI cannot evaluate testamentary capacity nor create a file note as evidence of your capacity to make a will. An AI cannot identify you. And an AI cannot protect you or your loved ones from the coercive control of another family member by ensuring that any will is as a result of your instructions, given freely and without the input of others.


Each of these protections is something requiring your lawyer. At Bradshaw Lawyers, we usually have at least a couple of active files at any time where the capacity of a will-maker needs to be carefully evaluated, or where a family member is challenging a will or some decision of the will-maker because of the will-makers capacity at the time that act was done.


We routinely see circumstances where will-makers have been taken to a new lawyer by a loved one who has only recently assumed ‘care’ of their elderly relative. If they lack capacity, the protections of seeing a living lawyer are essential. If they have capacity, that same lawyer can ensure there is evidence to protect the integrity of that document.


What's the Problem with an AI generated Will?

There are two problems. The first is the lack of protection offered by a lawyer to protect the integrity of your document: Capacity & Coercive Control.


The second is the quality of the output is solely dependent on the quality of the input. This is not true when you use a lawyer experienced in succession law.


Imagine this analogy: You are not much of a car expert. Before a service, you are asked to answer a lot of questions about your car, and your answers will determine what work is required during the service.


As a result of your answers, the AI Mechanic performs a Wheel Alignment. It does it quicker and cheaper than a traditional mechanic.


The problem is that you don't understand the car, and therefore some of your answers suffer from your own knowledge gap - you are not a mechanic. And because of this, while the Wheel Alignment doesn't hurt your car, no one checks the brake pads... Because the AI wasn't prompted by your answers to check them.


Its all sweet... right until the moment your brakes fail. Then its catastrophic.


It's much the same with an AI will. You answer a lot of questions and if you are lucky, a lawyer will check that the document has been merged correctly. But they won't question what you've done in the document or whether it is appropriate.


What you miss out on is a lot more, as Tara Lucke (The Art of Estate Planning) clearly outlines in the diagram below.



Graph entitled 'Time spent preparing your estate plan' with two columns: the first one lists activities undertaken by an online will business, and the second column lists the activities undertaken if your will is prepared by an estate lawyer

© Tara Lucke - The Art of Estate Planning [used with permission]

Is it Better than Not Having a Will?

As a general rule, having a will can be better than not having one. But we've seen some wills which have been drafted in such a way as to prevent an easy administration of the estate because it was drafted based on incorrect or out of date information. It was updated, but the client clearly had not been prompted to think about issues which then presented themselves.


Even a simple will should state who your executor is going to be which may prevent a fight if there is no named executor. But at worst, a poor will can cost the estate (or beneficiaries) tens of thousands of dollars to put the plan into action. Especially if there is real property involved or incorrect pre-conceived notions are included which include or exclude people from the will.


As with any 'simplified will' (eg Will Kit, AI Will, Public Trustee Will), what you pay for is what you get. One recent Ad stated that it would take only 20 minutes to draft your AI generated will. We would not consider having taken proper instructions and provided proper advice in 20 minutes, let alone drafted your document.


Using an experienced solicitor is not about being told how to draft your will, but rather the experience should provide the client with the comfort that avoidable risks have been avoided. And AI just isn't there yet.


What you risk with an AI will is a combination of some (but hopefully not most or all) of the following:

  • An increased risk of a challenge to your estate, eg Family Provision claim

  • The lack of evidence of capacity which may result in your will being declared invalid and a previous will being used

  • Beneficiaries losing inheritances because they are bankrupt, or at risk of bankruptcy

  • Beneficiaries losing inheritances because of divorce & family separation.

  • the loss of concessions such as First Homebuyer discounts, old age pensions, and general tax minimisation strategies which would more than off-set the cost of a lawyer drafted will.


You might decide that you are safe with an AI will because you have nothing anyway. But most of us have more than we realise.





The Middle Ground of AI in Estate Planning

My message is not that AI has no place in document drafting - quite the opposite is true. The risk is that generating these documents in the absence of experienced lawyers increases the risk to the will-maker without notifying the will-maker of those risks.


What has been invaluable to us at Bradshaw Lawyers has been the introduction of an AI backed initial instruction form. Client responses form the basis of your instructions to us and the questions asked do change with the responses to prior questions. It means that the time spent with your lawyer can be focused on advice rather than basic information gathering. The AI used to generate our initial form means that there is a lot of information which can be gathered prior to the appointment, which is something AI can do extremely well.

It leaves the appointment for clarifying those instructions, checking the information with open questions to assist with the capacity check, and to ensure the instructions are those of the clients, and not a controlling carer.

Our experience to date is that our initial will appointments are more productive, but take only half the time they used to.

The convenience to provide instructions at any time of the day (or night) remains as does the peace of mind in ensuring you get the advice you need.


In fact, please feel free to click on the banner below & start that process now.



After which, make an appointment with one of our team of lawyers using the link below.


In Conclusion: Using a Living Lawyer who has embraced AI ensures the best of both worlds.

You have probably seen a version of this graphic.


Equalateral Triangle with a word at each corner. The words are Properly, Cheap, and Quick

You get to choose one primary driver - do you want the document done quick, done cheap, or done properly? If your driver is cheap or quick, then yep - an AI generated will is an option for you. But if you want an estate plan done properly, in my opinion, it requires more than answering some questions from an AI and then using those answers for the AI to spit out a document you can print and sign.

To be fair, there may or may not be the perception that there are a lot of quick or cheap lawyers out there who provide a service akin (or not even) to an AI.


But if you want to ensure your estate goals are achievable, be an active participant in providing for your family’s inheritance planning, or merely want to ensure that you are ticking all the right boxes right now… then using a living Estate Planning Lawyer is going to cost you more. But it will also ensure peace of mind, both for you, and your family after you have gone.

If you want to get the best out of an estate planning lawyer who utilises AI for information gathering, then please make an appointment with one of our team & then fill out our AI backed initial information form at your convenience before the appointment.


Our Estate Planning Team can assist you with all your Estate Planning needs no matter how complex (or simple) your estate plan might be.



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