Estate Planning

Quicken WIll = Unauthorized Practice of Law for Insurance Agent

By David M. Goldman

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?"

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.

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.)

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."

The Supreme Court of South Carolina held that Chavis was no acting as a mere "scrivener" or stenographer, but because 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 said "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....")

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...

Full post as published by Florida Estate Planning Lawyer Blog on March 14, 2008 (boomark / email).