What are the dangers of writing a Will with AI?
The increased sophistication of AI and its availability to the layperson has caused both controversy and excitement across society and none more so than ChatGPT. Since its emergence in 2023, ChatGPT has been a revelation, possessing the ability to write highly articulate and intelligent essays in seconds, much to the dismay of educational institutions across the world. This begs the question, can ChatGPT also draft complex legal documents, such as a Will? Is the time by which lawyers are rendered obsolete approaching sooner than we might have thought?
Contesting a Will
Two of the possible grounds for contesting a Will are that the testator was unduly influenced or that the he/she lacked the capacity to make a Will.
One of the first things that a contentious probate solicitor will do when provided with instructions to investigate a challenge to a Will is to send a Larke -v- Nugus request to the law firm that drafted the Will. This requires that firm to answer a series of questions about the circumstances in which the Will was prepared and, usually, to produce a copy of their Will file. If the firm in question has done their job well, the Will file will include contemporaneous evidence that the capacity of the testator was assessed, and confirmed, and consideration was given to any external influence at play. A complete and detailed Will file can therefore be a key piece of evidence and often will be used to swiftly bat down any claims of undue influence or lack of capacity.
ChatGPT, whilst it does log conversations, cannot assess a testator’s capacity or the influence of a third party on the will making process; this is not something that any AI can do. Who’s to say that somebody wasn’t sat beside the testator whilst they were using ChatGPT, coercing them to give instructions for a Will. How can ChatGPT know that the person giving them instructions has the testamentary capacity to be making a Will? Nobody can say for certain and the scope for arguments to be raised as to the validity of a Will produced by AI is huge.
Knowledge & Experience
ChatGPT clearly does not have the experience of a seasoned Will drafter; legal professionals know the common pitfalls that open Wills up to later challenges and the provisions that testators often do not think to include. ChatGPT simply does not have this knowledge.
Furthermore, ChatGPT will only do what you ask it, and if you do not know, or think, to ask it to include certain provisions, they will simply not be included. The issues this would cause are endless, particularly in circumstances where the provisions of a will are not straightforward or will have very significant tax consequences.
A legal professional will also be sure to stress the importance of signing and witnessing the Will properly and will ensure that it is not improperly executed (another common ground for contesting a Will). ChatGPT cannot ensure proper execution.
There is much that ChatGPT cannot do that a legal professional can; but that does not mean that legal professionals are infallible and, indeed, this is why disputes arise after death. Issues which can arise are the omission of key provisions, clear warning signs as to capacity or undue influence not further explored, and improper supervision of the execution process.
If a legal professional makes a significant error, there are numerous avenues that an aggrieved testator/beneficiary can pursue to receive either financial compensation or rectification of the issue in question. Law firms will almost certainly have professional indemnity insurance in place to finance any damages claim which is made out in relation to errors made in the Will drafting process and clients have the security of knowing that if they do not get a proper service, there is the opportunity for redress. No such opportunity for redress exists with a Will drafted by ChatGPT. ChatGPT has no such indemnity insurance as it does not need it; ChatGPT has no liability to a testator for any errors or omissions that it will make in drafting Wills.
The costs that you might save from using AI to draft a Will are significantly less than the costs of consequential legal disputes that will inevitably arise due to an error or omission made by ChatGPT; an error or omission that is significantly less likely to be made by a knowledgeable and experienced legal professional.
Writing a Will with AI is fraught with danger and the potential for a dispute after death is increased significantly in the absence of legal professionals.
Claims for undue influence, lack of capacity, improper execution, and many more that have not been explored here will certainly be harder to defend in the absence of a Will file or a legal professional, held to the highest standard, who can advise and attest to the circumstances surrounding the drafting of a Will.
At least for the foreseeable future, lawyers will continue to be an integral part of the Will writing process. AI is, thankfully, not yet at the stage where it can be used to draft effective Wills and ChatGPT itself attests to this, asserting the importance of involving legal professionals, when faced with any instructions to prepare a Will.
Birketts’ Private Client Advisory Team can assist you with estate planning and writing a Will to ensure that you receive the correct advice to suit your needs and circumstances. Our Contentious Trusts and Probate Team can help if you have any concerns about the validity of a Will.
This article was written by Rachel Leech, Associate. For any enquiries, please contact Rachel or another member of our team on 01473 406386 or at email@example.com.