The issue of Use of Robots in drafting Wills, to me, is one which involving a number of different facets. Whilst it is definitely a coming methodology, presently there are, for me, many questions to be resolved.
In a sense the query whether robot Wills (or any other standardisable document) are good or not depends on the simple answer:-
‘It depends on how good the algorithms are relevant to questions asked and how well the answers direct the text of the Will from those available in the “system” .
I don’t go into that here.
However, for me, the topic raises more significant theoretical issues.
Use by A Lawyer and or Accountant
Whilst a law firm using such a system might be fine from a legal compliance sense (and I don’t here touch upon whether if the “system” generates an inapt document, the lawyer may be professionally negligent), is not the issue that needs to be asked as follows:-
“If a robot will drafting system is available online, is it necessary that the operator of such a system has to be a registered legal practice to comply with the requirements of legal profession legislation?”
The answer to that will, necessarily, depend upon the wording of legal profession legislation in whatever jurisdiction is relevant.
The issue is particularly relevant to any accountant who might turn his or her hand to Will drafting for clients.
Issues arise such as:-
• Who (or what) is actually doing the drafting?;
• Who (or what) is responsible for the drafting and its legal correctness where driven given by the “client’s” answers to the prompt questions used in such a system;
• Where is the client’s “personal information” and or data in any such system? Does it stay with the lawyer (or accountant) or does it go externally to some external service provider (whether constituted by people or a machine), so raising even more complicated “privacy” issues;
• Who is responsible for the legal correctness of the drafting in the “client’s” scenario;
• Will it have any final oversight by a live lawyer? If so, how much is needed?; and
• Given the changes to risk parameters in any such system, what is a fair fee for a Will so drawn?
The On-Line Scenario
In context of on-line operations, the topic requires a detailed consideration of:-
• what the “service” is;
• where the relevant “service” is provided; and
• who or what is providing it?.
The latter is especially relevant if the “operator” of the system is or operates in a jurisdiction other than that in which the person intending to make the Will resides.
Will use of any such system involve the creation of the “solicitor client” relationship?
That raises a plethora of interesting legal and philosophical issues which I don’t deal with in this short paper. However, they are ones which the legal profession and the administrators of the legal profession (and accounting profession) will soon have to grapple with.
If one can simply go online, access such a robot Will (or other) drafting system, pay $X and then answer a series of questions, the answers to which will generate and determine, due to the algorithms used in the system, what clauses are used, is that relevantly the provision of “legal services?”
If yes, the operator would seem to me to have to be an admitted registers legal practitioner.
If not, what is it and who is responsible if the “end” document fails to implement the intended purpose in a legal sense?
What are the consumer protection issues flowing from use of such a system?
If such a service is provided by a non-lawyer entity, as I’m sure will happen, is the operator in breach of legal profession legislation if it is not relevantly registered and authorised to provide “legal services” in relevant jurisdictions?
Will the corporate owner of such a system and or its directors have to be prosecuted for breaching legal profession legislation if not appropriately registered?
This is an issue which might be particularly relevant to accountancy using any such system for the benefit of their clients. Do they, by using such a system, expose themselves by what might be said to be overstepping the mark by providing ‘legal services’ and so be exposing themselves to criticism and or prosecution.
On to the Future
As a legal drafter, I have an great interest in “robot drafting” as a tool and have had discussions with various “computerised” drafting service providers and, to date, none of them have, in my view, clearly addressed that sort of issue let alone:-
1. where the client’s personal information and data goes and/or is held for the purposes of providing and generating the Will;
2. why (as some I spoke to assert) responsibility for the final product rests with the lawyer (or accountant) who generates such a will; and
3. can the algorithms cope with specific client needs and or wants?
The issues raised above are ones needing to be ventilated and discussed.
I dare say Law Societies and insurers of professionals will have to be consulted.
Authorities administering professionals may have to set policy guidelines on a range of the issues raised above. In my view, sooner rather than later, would be good for doing so.
The text of the paper is only a summary and discussion of particular facts and principles. It is not to be taken as legal or commercial advice as to any particular factual circumstances. Gregory can be contacted, if readers have any issues.