January 27, 2007
Using Quicken Software to Prepare Will for Another Person = Unauthorized Practice of Law
Franklin v. Chavis, Opinion No. 26251 (SC Sup. Ct. Jan. 22, 2007)
An insurance agent helped a 91 year old woman prepare a will using Quicken lawyer. Some relatives who got less than they thought they deserved challenged the will, arguing that the insurance agent engaged in the unauthorized practice of law. The court's response:
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.
However, the news isn't all good for the plaintiffs--the court didn't invalidate the will. But the news isn't good for the defense, either. UPL typically is a criminal violation, so it has to be a little disconcerting for the defendant to have a South Carolina Supreme Court opinion saying he engaged in UPL.
Either way, this is another reminder that the "mere scrivener" defense is typically a feeble one.
Posted by Eric at January 27, 2007 09:27 AM | Legal Industry
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