Viability of Using AI to Draft Wills

by Vanessa L. Kanaga Esq. On September 26, 2023

Introduction written by InterActive Legal

U.S. News & World Report recently interviewed InterActive Legal CEO, Vanessa Kanaga about the viability of using AI to draft Wills. Although current AI technology is impressive and can be put to beneficial use, the public should be wary of AI-generated Wills.  In addition to generating Wills that may not be valid, AI is also a one-dimensional approach that fails to take into consideration the needs of a client or other factors an attorney would take into account. 

Turns out, it’s complicated.


This article is being reprinted with permission from U.S. News & World Report.
Originally published on September 13, 2023 at 

https://law.usnews.com/law-firms/advice/articles/can-you-use-ai-to-write-your-will.


Can You Use AI to Write Your Will?

An AI-drafted will can be worse than not having a will – if it means someone believes they have a valid will when they don’t.

Written by Ashley Merryman, Edited by Susannah Snider, CFP, Reviewed by Tanza Loudenback, CFP

If you’re one of the millions of Americans without a will, you may wonder whether you can use a generative artificial intelligence program like ChatGPT to create one.

“Can AI draft a will? Absolutely. But the better question is: Should you use it?” says Vanessa L. Kanaga, an estate attorney and CEO of InterActive Legal, a company providing estate law software to law firms. “At this stage of AI, I would not recommend to anyone to rely on AI for their will.”

Kanaga qualifies her comment, saying that, for very simple cases, an AI-generated will might be better than nothing – as long as it’s valid.

Your AI-Created Will Might Not Be Enforceable

Many homeowners take on do-it-yourself projects, but at a certain point, they know when to call in a professional. “It’s the same thing with drafting a will,” Kanaga says. “It looks straightforward, but you don’t necessarily know all the pitfalls that could lead to the will being invalid or challenged or not doing what you intended for it to do.”

To protect estates from false claims, state laws set highly technical requirements in order for someone’s will to be valid. Just one mistake can mean that a court must invalidate a will, says Imaan Moughal, a trusts and estates associate at the New York law firm Manice, Budd & Baggett LLP and an adjunct professor of estate law at Hofstra University’s law school.

Getting the formalities right is so critical that full-time estate lawyers will routinely have other lawyers and paralegals check their work, Moughal says. But a nonlawyer using AI shoulders all the responsibility on their own. “My fear is that something could be quickly overlooked,” she says. That’s all it can take for a will to be thrown out.

What Happened When an Estate Attorney Used AI to Write Her Own Will

Kanaga recently experimented with having ChatGPT draft her own will to see exactly what it could deliver. As CEO of a company that provides estate law software to law firms, Kanaga understands both estate law and how attorneys already use software to generate wills and other estate documents. She was initially impressed.

“It was amazing what it can do,” Kanaga says. “Put in a simple request (or) question, and it will generate what purports to be a legal document.”

But the closer she looked, the more problems she identified.

She asked for multiple versions of the will, created under several states’ laws, but the drafts were largely the same. The New York version didn’t sufficiently reflect the state’s rules for the executor’s bond. And the signature clauses weren’t noticeably different when every state has its own requirements for the will-signing process. If that clause isn’t correct, a court might not accept a will for probate, she explained.

After reviewing the documents, Kanaga concluded that, in the future, AI might be a reliable way to prepare a will. But for now, she can’t even recommend using it for a first draft you’d give to an attorney.

If you did bring an AI draft to a lawyer, they’d likely ignore it and start over.

“Most attorneys have their own forms, or they use systems like ours, that they know are compliant with state law,” she says.

In other words, if an attorney relied on your untested AI draft rather than prepare a new document they knew would be legally sound, they’d arguably be committing malpractice.

Reasons Why a Human Attorney Should Draft Your Will

While an AI-created will is a one-sided exchange, solid estate planning begins with a meaningful dialogue between the client and attorney.

Clients come in asking for a will, but an attorney may realize they’d be better served with another estate tool, such as a trust, Kanaga says. With that one suggestion, the lawyer can help the heirs avoid extensive probate court proceedings and save thousands of dollars in legal bills.

Similarly, when clients first meet Moughal, they often say they have few assets and need a simple will. Then she begins a “fact-finding mission” and discovers they have a child with special needs who needs assistance. Or they own a business or have digital assets, such as credit card points, a random video game account and a stash of bitcoins. The child can be taken care of and the assets protected in a comprehensive estate plan – but only because she asked.

AI won’t know to ask any of that, but an attorney does.

An AI-Generated Will Is Riskier Than Other DIY Forms 

For those asking if there’s a difference between AI-generated documents and the many do-it-yourself form wills available, there is. The DIY forms are typically reviewed by attorneys. AI-generated documents may never get a legal review until a decedent’s will is submitted for probate, and then it’s too late to fix any mistakes.

When DIY wills are enforceable, these documents can still be so unclear or inaccurate that heirs challenge them in court. When Moughal reflects on all the times she’s seen heirs fighting in court, she estimates that half of those disputes involved online DIY wills. And she expects AI-generated documents to be more vulnerable to a challenge than those forms.

A Cheap Insta-Will May Defeat the Point of Having a Will  

Execution of an estate is complicated, emotional and time-consuming. Ultimately, the point of having a will is to protect your heirs’ assets and reduce their stress.

The idea that your loved ones would have to deal with an unenforceable will is “not a risk that you want to take,” Kanaga says.

Relying on a shortcut like AI to create a will might make things easier and cheaper for you, but if you make a mistake, it’s your heirs who pay the price.


Author

Vanessa Kanaga serves as CEO of InterActive Legal. Vanessa received her J.D. from Cornell Law School and holds a B.A. in Philosophy from Wichita State University, as well as an Advanced Professional Certificate from New York University School of Law. She is licensed in New York, Kansas, and Arizona, and currently lives in Arizona. Prior to joining InterActive Legal in 2013, Vanessa practiced in New York, at Milbank LLP and Moses & Singer LLP, and in Kansas, at Hinkle Law Firm, LLC. She has experience in a range of estate planning matters, including high net worth tax planning and asset protection planning.

In her role as CEO, Vanessa oversees strategic planning and development of InterActive Legal services and solutions, working with her valued colleagues to continuously provide reliable content and forward-thinking strategies to the estate planning and elder law attorneys who subscribe to InterActive Legal products. Vanessa also serves as the Moderator for the InterActive Legal Roundtable webinar series, fostering collegial discussion among a group of expert panelists on trending topics in estate planning.

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