While it may be tempting to rely on artificial intelligence or AI when it comes to estate planning and drafting other important documents, a recent experiment carried out by Attwood Marshall Lawyers highlighted the dangers of trusting your Will to an AI program like ChatGPT, writes Wills and Estates Associate Natalie Comerford.
Legal blunders and the illusion of savings
The allure of AI-generated Wills lies in their perceived affordability. You only need to launch a website and ask the chatbot what you’re after, and you receive what appears to be a fully drafted document without having to speak to anybody physically or hand over any fees.
However, taking “shortcuts” like this can lead to significant financial burdens for your estate down the line.
From giving away assets the Will-maker doesn’t own or using antiquated language that doesn’t have a place in our justice system anymore to incorrectly signing the document—rendering the entire thing invalid—many of the issues with online templates or Do-It-Yourself Wills don’t come to light until the testator has passed away.
Recently, we ran four different prompts through ChatGPT to see what it could come back with; each focused on a different demographic with different needs. Our findings are detailed further below, but here are our main observations from the exercise:
- ChatGPT’s templates can omit crucial legal clauses or spit out language that lawyers don’t use anymore. The subsequent ambiguity over what you intended can trigger costly court battles after you die, forcing your loved ones to ask the court for clarity.
- The chatbot can omit key details like guardianship for minor children or fail to account for existing financial obligations, which can create a significant legal mess, costing your estate dearly in legal fees and emotional stress to clear up.
- AI may not understand the complexities of asset distribution and what makes your family unique, leading to confusion about who inherits what.
The Attwood Marshall Lawyers experiment
Attwood Marshall Lawyers put ChatGPT to the test with various estate planning scenarios, investigating how the tool would respond to specific prompts and highlighting the program’s shortcomings when trying to draft a Will:
Scenario 1: Gifting to charity
“Can you write a Will for me with my friend Samantha as an executor giving all my assets to Animal Welfare League?”
In this scenario, ChatGPT’s draft Will did set out several clauses appointing Samantha as the executor of the Will, and providing the option to name an alternative executor if Samantha was unable or unwilling to act as executor. However, ChatGPT failed to address other crucial details, such as the testator’s burial wishes, which can be a huge source of contention among families if the deceased’s wishes are unknown. This uncertainty can sometimes lead to expensive litigation [link to the previous blog] and unnecessary family conflict.
AI tools can only provide an answer based on the specific information and prompt that it is fed. If the user has not considered all the legal aspects they need to cover and include in their Will, the chatbot will not ensure you have ticked off all the necessary requirements.
In this test, ChatGPT also failed to include crucial information on the testator’s wishes to gift her assets to charities. Extra legal requirements must be considered here and carefully discussed with an expert. In addition, the template that ChatGPT provided did not leave room for provisions covering the event of the chosen charity closing or going under. Without instructions on this issue, an executor would need to go to court for an answer on how the assets should be distributed, which can be costly.
Scenario 2: Mum and Dad’s Will
“I want to write a Will for myself and my wife appointing each other as executors and we give devise and bequeath our estate to each other then our two children A and B.”
The first glaring issue we spotted with ChatGPT’s response to this prompt was that it crafted a template for a “joint” or “mutual” Will, which most estate planning lawyers would advise against.
Mutual Wills are contractual, where the agreement binds both parties so they cannot change the Will after the other dies. These types of Wills can create complex legal issues. There are other estate planning options and Will structures which may be more appropriate for most married couples.
The language used by ChatGPT was also outdated and could very easily be misinterpreted.
Scenario 3: Blended Family
“Write a will for me in Queensland leaving all my assets to my current wife Karen. I do not want my ex-wife Samantha getting any of my assets. I also want to leave a small gift for my children A and B that were born during my marriage with Samantha. I then want to leave my CBA account to my children D and C when they reach 18 years old.”
The AI-generated Will contained duplicate gifts (giving the same gift twice to different beneficiaries) and didn’t go into sufficient detail about how a trust should be set up if both parents died while the children from the second marriage were still minors.
The phrasing and structure of the Will also had construction issues, raising uncertainties that only a court could solve.
Blended families present unique challenges in estate planning, and only a lawyer can ensure your Will clearly outlines your wishes for all your children, avoiding duplication and confusion.
Scenario 4: Testamentary Trust
“Write a Will for me, leaving all of my assets to my wife and then our children A and B, including a testamentary trust.”
While ChatGPT mentioned a trust in its response, it lacked the necessary details for the instructions to be functional.
Like in scenario 2, this prompt also did not generate a ChatGPT warning or disclaimer about the importance of engaging a qualified lawyer in the user’s country.
The template the platform did produce was rife with ambiguities and construction issues. When discussing beneficiaries, the template also repeatedly used the phrase “absolutely and in fee simple.” It was an odd inclusion that raised our eyebrows, as fee simple applies to an interest or ownership of land and wouldn’t make sense to include in all situations.
ChatGPT: a case study in caution
There is no substitute for getting professional advice on estate planning to ensure your most basic legal affairs are in order and your family is protected long after you are gone. You should not take estate planning and the drafting of your Will lightly.
Only a conversation with an experienced lawyer who asks the right questions and understands your unique circumstances and family make-up will generate a solution that is best suited to you.
The specialist touch: why lawyers matter
It all comes down to your intention, with the correct words used in their proper context. It’s no good skimming through a computer-generated Will and assuming, “That will do.”
An experienced estate planning lawyer understands the legal principles of writing a Will, beyond simply listing a set of instructions. They also know how courts interpret documents. They can ensure your wishes are translated into clear, legally binding language, using terminology that accurately reflects your intentions.
Only a Will tailored to your unique circumstances—considering factors like blended families, testamentary trusts, and minor children or dependents with special needs, for example—will minimise the potential for future disputes.
Lawyers will also ensure your Will is signed and witnessed correctly, as they understand the proper execution formalities that the courts require.
At Attwood Marshall Lawyers, we take precautions to ensure that anyone drafting their Will has the required capacity and that they understand the nature and extent of their estate. An experienced estate planning lawyer is also able to mitigate the risk of an individual being unduly influenced or coerced into putting clauses in their Will that do not reflect their true intentions.
There is no substitute for getting professional advice on estate planning to ensure your most basic legal affairs are in order and your family is protected long after you are gone. You should not take estate planning and the drafting of your Will lightly.
Only a conversation with an experienced lawyer who asks the right questions and understands your unique circumstances and family make-up will generate a solution that is best suited to you.
Attwood Marshall Lawyers – helping you plan, protect and preserve your wishes
Attwood Marshall Lawyers is an experienced estate planning law firm with one of Australia’s most prominent and accomplished Wills and Estates teams. We take a holistic approach to estate planning to ensure our clients get a personalised service that considers their unique circumstances and specific wishes.
To have your Will reviewed or updated, or to discuss our estate planning services, please get in touch with our Wills and Estates Department Manager Donna Tolley directly on 07 5506 8241, mobile 0423 772 555 or email dtolley@attwoodmarshall.com.au
You can also book online instantly by clicking here and booking through our website.
