[Infowarrior] - Heirs sue over will-making software

Thu Jan 25 09:31:46 EST 2007

Police blotter: Heirs sue over will-making software

By Declan McCullagh
http://news.com.com/Police+blotter+Heirs+sue+over+will-making+software/2100-
1030_3-6152761.html

Story last modified Wed Jan 24 08:33:53 PST 2007

"Police blotter" is a weekly News.com report on the intersection of
technology and the law.

What: Insurance agent sued for "unauthorized practice of law" after he uses
Quicken software to help a 91-year-old woman create a will.

When: Supreme Court of South Carolina rules on January 22.

Outcome: Use of computer software ruled to be "unauthorized practice of
law."

What happened, according to court documents:
Ernest Chavis is a South Carolina insurance agent who previously had some
business dealings with a 91-year-old woman named Annie Belle Weiss. On July
20, 2004, Chavis visited her and, at some point in the conversation, Weiss
asked him "Can you help me make a will?"

Weiss said she was asking because she wanted "someone objective" and told
Chavis how she wanted her property divided up. Chavis used Quicken
software--apparently Quicken WillMaker or Quicken Family Lawyer--to fill in
the blanks and then brought the completed will to her in the hospital. Weiss
signed it on July 31, 2004, and died two months later.

What makes this case relevant to "Police blotter" is the question of whether
Chavis was engaging in the unauthorized practice of law by typing
information into the Quicken program.

Beth Franklin and Julianne Franklin, Weiss' grandnieces, filed a lawsuit
contesting her will and claiming Chavis engaged in the unauthorized practice
of law. Chavis was named as Weiss' personal representative, but not as a
beneficiary. (He would be, however, entitled to up to 5 percent of the
estate's value under state law because of his duties as personal
representative.)

Unauthorized practice of law is a remarkably vague concept that has led even
some lawyers to refer to state bar associations as "cartels" that act to
restrict competition and boost their own incomes.

One scholarly paper, for instance, estimates that professional licensing
inflates attorneys' starting salaries by at least $10,000 and cost consumers
more than $3 billion annually in extra fees. The Texas Bar Association has
targeted Nolo, a California publisher that sells self-help books like 8 Ways
to Avoid Probate, and has tried to ban the sale of Quicken Family Lawyer.
Paralegals offering basic services on their own--even after they had done
the identical work at a law firm--have been sued out of business.

To bar associations, unauthorized practice of law is a deadly serious
business. As far back as 1941, a Pennsylvania court ruled that "furnishing
advice" about the practical issues that wills and insurance policies raise
"constitutes the practice of the law."

In this case, too, the Supreme Court of South Carolina took an expansive
view of unauthorized-practice-of-law violations. Instead of acting as a mere
"scrivener" or stenographer, the court said that Chavis did the work away
from the hospital outside of Weiss's presence and was guilty of an
unauthorized-practice-of-law violation.

The court did not order that Chavis be removed as personal representative,
but did order that he should not receive the customary fee for his work
(because, again, it allegedly derived from his unauthorized-practice-of-law
offense). The judges did refuse to throw out the will in response to the
grandnieces' requests, concluding "if the July 31 will was in fact drafted
pursuant to Ms. Weiss's true wishes, it should not be invalidated simply
because it was drafted by a non-lawyer."

Excerpts from the Supreme Court of South Carolina's opinion:
The preparation of legal documents constitutes the practice of law when such
preparation involves the giving of advice, consultation, explanation, or
recommendations on matters of law. Even the preparation of standard forms
that require no creative drafting may constitute the practice of law if one
acts as more than a mere scrivener.

The purpose of prohibiting the unauthorized practice of law is to protect
the public from incompetence in the preparation of legal documents and
prevent harm resulting from inaccurate legal advice. ("The amateur at law is
as dangerous to the community as an amateur surgeon....")

The novel question here is whether respondent's actions in filling in the
blanks in a computer-generated generic will constitute the practice of law.
Respondent selected the will form, filled in the information given by Ms.
Weiss, and arranged the execution of the will at the hospital. Although
these facts are not in themselves conclusive, the omission of facts
indicating Ms. Weiss's involvement is significant. There is no evidence Ms.
Weiss reviewed the will once it was typed. The will was not typed in her
presence and although respondent relates the details of what Ms. Weiss told
him to do, there is no indication he contemporaneously recorded her
instructions and then simply transferred the information to the form.

We construe the role of "scrivener" in this context to mean someone who does
nothing more than record verbatim what the decedent says. We conclude
respondent's actions in drafting Ms. Weiss's will exceeded those of a mere
scrivener and he engaged in the unauthorized practice of law...