Only approximately half of Wills drafted in the UK have been prepared by a solicitor, according to a recent survey by the Association of Lifetime Lawyers (“ALL”). Most of the balance have been prepared by non-solicitor will writers or are homemade. However, there is also emerging a growing trend of homemade Wills being created using AI. In fact, the ALL study suggests that 72% of UK adults aged between 30 and 34 would consider using AI to update their Will.
B P Collins’ contentious probate team explores the potential risks associated with AI-drafted Wills and the impact of mistakes discovered post-death.
Do you need a solicitor to prepare your Will?
There is no requirement to use a solicitor to prepare your Will. However, there are many advantages to doing so. Solicitors are required to prepare Wills in accordance with the law and they are regulated by the Solicitors’ Regulation Authority, which means they must undertake continual training to stay up to date, they must adhere to rules regarding how they interact with clients, they must keep records, and they must have insurance in place to cover claims for negligence.
What is the issue with AI?
Open-access AI (AI which is available to the general public) is a relatively new technology. In the legal industry there have certainly been some teething problems surrounding AI. One high-profile example involved an attorney in the USA who asked ChatGPT to provide some case law, and then unwittingly presented case law to the court, which ChatGPT had entirely invented.
People are generally very trusting of content prepared by AI and this can present a risk. If a testator does not know how a Will should be prepared, they are unlikely to know if their AI-generated Will is correct or contains fundamental errors.
Some of the potential pitfalls with using AI to prepare a Will could be:
- Non-compliance with UK laws;
- Failure to consider UK tax structures resulting in estates which are distributed in a tax-inefficient manner;
- Unclear or ambiguous wording;
- No advice or consideration of personal circumstances including potential claims against the testator’s estate;
- No record of the testator’s instructions, reasoning or intentions;
- No ability to consider issues such as whether the testator has testamentary capacity or is being unduly influenced by someone to prepare their Will in a particular way; and
- More likely to result in technical invalidity such as improperly signed Wills due to a lack of advice or review by a professional.
Can an AI-generated Will be fixed post-death?
In a previous article, our contentious probate team has looked at what can happen if there is a mistake in a Will . Commonly, mistakes are only discovered once the testator has died, and therefore the option to execute a new Will is not available. Nevertheless, if all of the beneficiaries are agreed that a mistake has been made, it may be possible for them to agree to vary the Will to correct the mistake (if there are minor beneficiaries or beneficiaries without capacity, the court’s approval will be required).
In addition, with Wills drafted by a solicitor or will writer, a claim for “rectification” of a Will can correct mistakes, which arise from clerical errors (e.g. misspelt or transposed names or figures) or from a failure to understand the testator’s instructions. Such a claim would at least be more difficult – if not impossible – in the case of a Will prepared using AI, where no human being has been involved with taking and interpreting instructions. It is also unlikely, if making a Will at home and using AI, that there will be any record – or at least an easily accessible record – of what the “instructions” or intentions were.
The beneficiaries may be able to apply to the court to interpret an AI-generated Will where the language is unclear, but again the likely success of any such claim will be impacted by the lack of any recorded instructions or intentions (such as a solicitor’s note of the meeting with the testator). Even if such a claim might be possible to correct unclear wording, there is unlikely to be any way around a Will that references made-up laws or incorrectly applies statutory provisions, which could lead to parts of the will being void or tax inefficient.
As an AI-generated Will is effectively a homemade Will, there would also be no option for any claim in negligence to compensate the estate or the beneficiaries for any loss.
Summary
In most cases, engaging a solicitor to prepare your Will and receiving up-to-date, tailored advice will always be a worthwhile investment. You can have peace of mind knowing that your have a professionally drafted, legally compliant Will – or in the rare cases of negligently-drafted Wills, knowing that any loss caused to your loved ones can be compensated.
If you have noticed an error in a Will or you require any advice regarding claims against an estate, please contact B P Collins’ contentious probate lawyers at enquiries@bpcollins.co.uk or 01753 889995.
