October 2008 Archives

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.