Police blotter: Heirs sue over will-making software

Quicken software is used to create a will for a 91-year-old woman. Two grandnieces claim it's the unauthorized practice of law.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
4 min read
"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...