It is commonplace to be adopting AI short-cuts for many of today’s administrative, research and educational queries, but not every prompt provides an accurate answer – and this is especially so for legally binding documents such as wills.

A client of our Wills & Estates team recently prepared their own will using Chat GPT and asked Maddocks to review it. The output caused alarm for our lawyers and confirmed the many potential pitfalls for people who are now innocently using AI tools to prepare crucially important estate planning documents. 

Our team thought it would be fitting to turn to CoPilot itself when exploring the key risks associated with using AI tools to prepare succession planning documents. The practical takeaway was as follows: 

“using AI to draft personal estate planning documents without expert review carries a high risk of invalidity, dispute and professional exposure, particularly in Australian jurisdictions with complex succession and trust law”. 

AI itself tells tales of caution.

This article explores the key reasons why using AI tools to draft estate planning documents without expert legal review should be avoided at all costs, including:

• AI errors and fabricated outputs that undermine reliability
• Reliance on incorrect, incomplete or outdated legal principles
• Missed nuance in instructions, context and client intent
• Structurally flawed or ineffective testamentary trust outcomes
• Risks around execution, witnessing and formal validity
• Data privacy, confidentiality and information security exposure

Errors and hallucinations 

AI tools are prone to errors and “hallucinations”, where the AI tool confidently generates plausible but ultimately incorrect or fabricated information. Courts around the world are currently inundated with the issue of AI generated documents that include legal provisions that do not exist, fake cases, or legitimate provisions and cases used incorrectly.

Similarly, guidance from the Law Council of Australia stresses that no current AI tool can replace legal expertise, as outputs may be fluent yet fundamentally wrong, requiring rigorous human verification. One recent US analysis found that some AI models scored poorly when answering estate planning questions, missing critical details and even inventing legal provisions that do not exist.

Incorrect and outdated law

Another key risk associated with relying on AI tools for legal tasks is that they cannot reliably distinguish between different legislation, including state vs commonwealth, and current laws vs repealed or amended provisions. The interplay between different legislation when preparing an Australian will – including execution formalities, statutory legacies, intestacy rules, family provision regimes, superannuation legislation and potential tax implications – all vary considerably between different states and territories throughout Australia. This means that an AI tool will likely misunderstand the legal requirements of an Australian will and spit out a document that simply may not be legally binding. Is this a risk worth taking?

Failure to capture nuance and client intent

The intricacies of estate planning should not be underestimated. Will drafting is unique for each individual and AI tools struggle to grasp concepts such as: 

• complex family dynamics including blended families;
• evolving life events;
• estrangement or informal dependents;
• unequal distributions and the reasons for them;
• issues around testamentary capacity or vulnerability including undue influence; and
• testamentary intention vs moral obligation. 

In short, all of the human factors that make AI redundant and risky in these scenarios. These are all key considerations when drafting a will and a lack of understanding around them results in real risk that the willmaker’s true intentions are not reflected, which in turn increases the likelihood of family disputes, family provision claims being made against the estate, and partial intestacy. These are all things that could be avoided if your will is reviewed by an estate planning legal practitioner.

Invalid or poorly constructed testamentary trusts

A testamentary trust is a trust that is established within a will and only comes into effect upon the willmaker’s death. They can be beneficial in many instances, most notably for asset protection and tax reasons. There are strict technical rules when it comes to creating trusts, and AI tools have been shown to create trust-like clauses that fail to:

• correctly confer trustee discretions;
• align vesting dates, control mechanisms and tax outcomes; and
• ensure consistency with superannuation legislation and trust deeds.

Such a trust could ultimately be deemed as ineffective for asset protection or tax purposes, or internally inconsistent.

Execution and formal validity risks

One of the critical missing elements in our client’s AI-generated draft will was that it did not include valid execution clauses. As any competent estate planning practitioner would know, the need for a will to be executed correctly is paramount if it is relied upon after the willmaker’s death. Incorrect witnessing procedures, attestation clauses which are not compliant with the jurisdiction, and a lack of testamentary capacity safeguards are all examples of things that can ultimately lead to the following risks:

• rejection at probate;
• reliance on a costly rectification application; and
• increased exposure to the will being challenged.

Data privacy and confidentiality 

Privacy and security risks also present themselves when highly sensitive and personal information is entered into AI platforms. This data can quickly and easily be exposed through breaches or misuse.

Key takeaways

All in all, this is a non-exhaustive list of just some of the reasons why AI tools should not be used to prepare estate planning documents without having a legal practitioner review it first. What seems like a quick, low-cost solution can ultimately result in invalid documents, family disputes, and unnecessary legal fees.

So when it comes to something as critical as securing your legacy, remember that professional advice from a qualified wills and estates practitioner is irreplaceable – just ask AI yourself!