Where There’s A Will

8 min read

Our guest writer, Murray Gottheil, a retired lawyer, shares insights on the importance of having a well-prepared Will, the role of legal technology in estate planning, and how law firms can stay competitive in an evolving legal landscape.

The phrase, “where there’s a will, there’s a way” dates back to the 1600’s. My preferred variation of “where there’s a Will, I want to be in it” is of a later vintage.  Even more recent is my new expression: “where there’s a Will, it is only fair that lawyers make a few bucks drafting it.”

My late father used to say that the problem with life is that generally, it does not end well. Now that I have turned 70 years old and I think about my mortality more than I did just a few short years ago, I worry that my old man knew what he was talking about.

I am slowly coming to terms with the idea of my eventual demise, and the fact that there is probably not a whole lot that I can do about it. What I have not spent nearly as much time thinking about is what I can do to improve the experience for my family.

Back when I was young enough to be able to afford life insurance, I thought that I had figured out the whole thing. I had a policy that would have paid my wife $1,000,000 soon after I drew my last breath. I used to tell her that I was certain that she would be going shopping even before the funeral, a comment which she did not appreciate.

Since I can no longer afford to carry insurance, I suppose that it is time to stop using my eventual departure from this realm to amuse myself and annoy my wife, and to ponder practical strategies for making my death less painful for her than it would otherwise be.

Since I am lucky enough to have a wife who actually likes me, I know that there is not much that I am going to be able to do to make it a good day for her when I take my leave. But perhaps I can divert some of the time that I spend annoying her to doing things now that will make the days that follow that a bit easier to cope with.

Let’s start with having a Will.

Back when I practiced law, I had a partner who was (and still is) one of the best Wills lawyers in the Toronto area. I also had a partnership agreement which allowed me to access some free legal services. And so, I had a Will that made sense for my circumstances as a married father of two.

After my domestic reorganization, I replaced that Will to leave my then vastly depleted fortune to my new wife and old children. Over the next 15 years and still having access to the services of my brilliant partner without charge, I changed my will a few more times as my personal circumstances changed.

After I retired and had to pay my own legal fees, the pace of new wills slowed down, but there were a few more changes made to keep up to date with my new life as a retiree. I must confess that it was not nearly as much fun when I had to pay for the legal work.

I believe that my approach of having a Will and changing it when my personal circumstances changed (or my family members annoyed me) is the right way to do things. I understand that it was easier for me than for many people to do that, because of my access to an excellent lawyer, at least initially without cost.

But, what about people who have to pay their own legal fees?

The wealthy can afford it. They may not like spending significant legal fees to take care of their families, but I shed no tears for them.

The good news for people who have very little net worth is that their Wills will be simpler and cheaper to prepare. They also do not have a good excuse for not having at least a basic Will in place.

Of course, there are those cheapskates who can afford to hire a lawyer, but who will do it themselves, probably with the assistance of some online service. I am too old, tired, and retired, to care enough to lecture people who should know better that you get what you pay for, and that no, your situation is probably not as simple as you think it is.

Regardless of who is going to prepare your Will, you can be certain that there will be some technology involved. Professionals stuck in Medieval Times will use forms in Word and fill in the blanks. Online providers will have you complete a questionnaire and then spit out the results. And those at the top of their game will use more sophisticated software products to generate cutting edge legal documents. Their software will prompt the user to consider legal issues tailored to the individual client and will identify tax issues.

All of that is how things should be. But still, that only addresses the preparation of Wills and ancillary documents such as powers of attorney for property and personal care, and affidavits of execution. It doesn’t address what really great software should be doing. So, here are some thoughts:

1. Wouldn’t it be nice if a law office used a suite of software with a shared database so that when a lawyer starts drafting a will, they are prompted to consider real estate and corporate shares owned by the client, of which the firm is aware because they acted on the real estate acquisitions and are corporate counsel to the corporations?
2. How about if the software told the Wills lawyer that there is a family law matter being handled elsewhere in the firm that might impact the estate planning?
3. After the Will has been signed, and the client passes on to a better world (it really could not be worse than the world we are all experiencing now), if the firm is fortunate enough to be retained on the estate administration file, wouldn’t it be peachy if all of the details about the Will and the family members of the deceased were readily available in the Estate Administration Software to get things started?

But, enough about the clients. Let’s forget them and think about the lawyers for a moment (as law firms sometimes do.)

Perhaps the lawyer passes away. Think about how helpful it would be if all of that knowledge about the deceased lawyer’s clients that was accumulated through real estate transactions, corporate work, family law matters and Will drafting was readily accessible to the firm in one shared database.

Or perhaps the lawyer does not die but moves to another firm and the old firm wants a fighting chance to hold onto the clients. That database looks like a pretty good tool now, doesn’t it?

All of the features which I have referenced above are, at a minimum, “nice to have” and I would think that lawyers practicing in the area of Wills and Estates will, over time, find themselves looking for software that can do these things. However, “nice to have” does not compel businesspeople to write cheques or initiate electronic transfers. “Need To Have” does that.

And what do legal practitioners need to have? 

They need to have a way to continue to earn money in their chosen area of practice while competing with service providers who have lower overheads and the ability to quickly generate documents using increasingly sophisticated software, which will, of course, be powered by artificial intelligence. “Yes, Mr. and Mrs. Client,” they need to say. “Of course we will bill you top dollar for all of our thoughtful analysis of your situation and making strategic recommendations, but rest assured that when it comes to drafting your Will, you won’t be paying us any more than you would pay someone else to draft the document.”

They also need to stay in the game for simple services so that they will be top of mind for more sophisticated services. They want to be able to say, “Of course we can quickly prepare that Codicil or replacement Will with a minor change for you cheaply and quickly. The charge will be minimal, but don’t forget to have your kids call us when you pop off and we can finally make some real money from your family.”

We all know that the legal profession is changing. Legal technology, including artificial intelligence, is going to change what lawyers do and how they do it. Clients are going to pay for advice and strategy and not so much for producing paper (or virtual paper). But producing documents is still going to matter. It is going to get done poorly by some and well by others, but the clients are not going to be able to distinguish between your great paper and someone else’s schlock based on anything other than price. They will pay a bit more to have it done by a brand name, but how much more?

Lawyers will need great technology to stay competitive. Simply producing a document is going to be the price of admission. You need to ask your software providers what else they are going to do to help you succeed.