The law is specially jealous when it comes to will making

Here’s an interesting report on a little American case which is illustrative of the special jealousy with which the law reserves to lawyers the making of wills, together with some interesting broader commentary on the whole question of the reservation of “legal work” to lawyers. An insurance salesman engaged in unqualified practice by helping a 91 year old make a will naming him executor, using will making software, but the illegality of his conduct did not invalidate the will as the disappointed beneficiaries had hoped.

The case is Franklin v. Chavis, Opinion No. 26251 (SC Sup. Ct. Jan. 22, 2007). An insurance salesman was found to have engaged in what the Yanks call “UPL” — unqualified practice of law — with typical EOD. An insurance agent was asked to help a 91 year old woman to make a will. Using will making software, and following her instructions, he created a will and brought it to her in hospital. Two months later, she died. Disappointed beneficiaries challenged the will. The insurance agent was named as what we could call the testatrix’s executor, but was not a beneficiary. He was entitled to remuneration for his pains and troubles as executor under local statute law, however. Though UPL was made out — a “mere scrivenor defence” failed– it did not invalidate the will. The beneficiaries got no joy.

An Australian unqualified practice case about wills is Australian Competition & Consumer Commission v Murray (2002) 121 FCR 428, a decision of Heerey J of the Federal Court of Australia. In the recent decision of Orrong Strategies Pty Ltd v Village Roadshow Limited [2007] VSC 1, Habersberger J described the case thus:

‘That was a case involving a prosecution by the ACCC of a person for engaging in misleading and deceptive conduct in franchising a will writing business and marketing that franchise to potential franchisees. Heerey J concluded that the business sold to the complainants was one that could not be carried on lawfully in that it involved would be franchisees giving legal advice to will maker clients and in fact provided for a warranty to be given to such persons that the will produced would not only be legally valid, but suitable for the particular customer. His Honour described that conduct as “the essence of legal practice”, because it involved:

“the advising of a particular person in a particular situation and the production of a document which affects legal rights and which is tailored to the particular needs of that person.”‘

See also Legal Practice Board v Taylor [2005] WASC 242.

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