By E. Jennifer Reale
Why should you pay an estate planning attorney to prepare a will or a trust when, for much cheaper, you can use an online service?
We hear this question all the time.
I’m sure the estate planning attorneys in my firm can spend hours discussing the horror stories they have seen when the estate plan generated by a computer was not the best option for the client, or when the client failed to execute the documents properly.
But as a Connecticut probate litigation attorney, something completely different comes to my mind. I defend and challenge wills and trusts for lack of capacity and undue influence. So the one question I must ask is: what kind of evidence would I have if the estate planning document was created through an online legal service?
When there is a will contest, the drafting attorney is always called as a witness to testify to the testator’s capacity and for the lack of undue influence.
It is true, that an online service may ask similar questions that attorneys ask to ascertain capacity, such as asking the testator to list his or her family members.
I do wonder, however, what proof we will have that it was in fact the testator who filled out the answers. Moreover, how can we prove who was in the room when he or she filled out the online questionnaire? This may particularly be a red flag, if the testator is an elderly person who does not use a computer regularly.
One of the major factors considered when litigating undue influence is whether the main beneficiary drove the testator to the appointment and/or was present during the meeting. An experienced estate planning attorney will strive to meet alone with the testator to ensure that nobody is influencing the testator to a particular disposition of property.
But how can we prove who was in the room when an online survey is being filled out?
As an example, it is not unusual for a parent to leave a larger portion of the assets to the child who is taking care of the elderly parent. However, would the child’s presence in the home be indicative that the child was present when the parent filled out the online request for an estate planning document? It is certainly an argument, and a strong one, that the other children whose shares were reduced, would raise.
As time goes on, it is inevitable that we will have more and more cases addressing this very issue. If you’re thinking that an online will is an easy and more affordable short-cut, you should know that in actuality, there’s a good chance that do-it-yourself legal documents might end up costing you and your loved ones more than you think.
Give us a call, we’ll make sure your estate planning documents make it easier for your loved ones to receive what you bequeath to them.