I saw a comment online recently, stating that Wills drafted by AI, using functions such as ChatGPT are the new wave of homemade Wills. As previously covered by myself and my colleague Alex Stanier, homemade Wills have resulted in some of the most complex and costly estates to administer, due to a lack of advice at the time the Wills were created. So, with some interest, I decided to test ChatGPT on providing a template for some of the most common types of Wills people try to prepare. Here’s how it faired:

Round 1- Simple/Fixed interest Will

I asked ChatGPT to produce a template for a UK compliant Will. The result was, surprisingly, not terrible. ChatGPT provided me with a template Will which included a form of renunciation, appointed executors and replacements, a space to include specific gifts, guardians for minor children and covered digital assets. It also sought to confirm the extent of executor’s powers to deal with any property/land forming part of the estate. All good points.

Where it fell short however was directing the executors to pay all debts, funeral expenses and testamentary expenses as soon as possible after the testator’s death- this is not always appropriate as there can be a hierarchy for settling debts that needs to be considered. Executors are required to pay debts before making distributions but a direction to simply pay all debts as soon as possible is not particularly helpful.

The template also remains silent on tax. This can be a really tricky point where the Will makes specific legacies, especially where the estate includes a combination of exempt and non-exempt beneficiaries. In a worse case scenario the estate could end up unintentionally paying more tax as a result.

The execution section is compliant with s9 of the Wills Act 1837 but includes references to sealing the Will, which is unnecessary and would just cause confusion. Given how often people come a cropper on the execution of Wills, this could easily result in a Will which is invalid due to a lack of the correct formalities being met. This is however an issue with any homemade Will.

Round 2- Will giving spouse a right to live in house for life/ life interest then to children

Wills including a right for a spouse to continue living in a property, or providing them with a life interest in the estate of the first die are fairly common: see this blog on reasons why they may be appropriate. I therefore decided to ask this as 2 slightly different questions: the first question asked ChatGPT to draft a Will giving my husband a right to live in our house for his lifetime and then to our children.

I will say that I was impressed that at both the start and end of the response, ChatGPT directed me to take advice from a qualified estate planning attorney. That was, however, the only positive point in the response generated. The template produced did indeed give my husband my house for his lifetime use and enjoyment and stated that he should be permitted to live there until his death or until he voluntary vacated the property. At that point the property should pass to my children equally.

What it fails to cover however included: who the trustees of that trust should be? What would happen if my husband wanted to buy a replacement property? What happens if one of my children had predeceased my husband and at what point their interest vested (was it on surviving me or on surviving him)? What happens if my husband fails to maintain the property? Are my trustees liable for the damage? And who would be responsible for the upkeep or insurance of the property during my husband’s lifetime?

The template provided would have, if used, created a trust over my property for my husband’s benefit but my executors would not have been thanking me as they would be left with a great deal of uncertainty and legal liability with no funds with which to protect themselves or the trust asset.

The second question asked ChatGPT to provide me with a template Will including a life interest for my spouse. Unfortunately the answer to this was even worse than the first question. There was no recommendation to seek professional advice for starters. The life interest then consisted of a specific legacy to my spouse of a life interest in [insert property/asset], with a right to use, occupy and enjoy that asset for his lifetime.

As with the first response, the Will does not appoint trustees for this trust (but does appoint executors), nor does it set out any trustee powers.

I had also failed to specify in my question that the Will needed to be UK complaint (my mistake, but also easily done by a lay person) and so the execution provisions did not comply with s.9 Wills Act 1837 and so would have been invalid. I tried reframing this question a few times, including “UK complaint” and on the third attempt had a Will that would have been legally valid, but still contained all the issues previously identified and in all cases failing to appoint trustees with specific trustee powers.

Round 3- Discretionary Trust Will

Finally, I asked ChatGPT to produce a template discretionary trust Will compliant with UK law. It took 3 searches with variations of this criteria to get a Will template, rather than a template letter setting out instructions for such a Will. I will however give credit where it is due: this Will template did specifically appoint trustees, unlike all other Will templates in earlier searches. It also set out the trustees authority to invest trust funds and to accumulate or apply income or capital for the benefit of beneficiaries at their discretion. However, the only other express power included the power to appoint new trustees, which remained vested in the executors of the estate!

As with the life interest trust, the trustee powers are incomplete and so would make it practically difficult to administer. The document also omitted some basic details such as the trust period or default beneficiaries to prevent funds from reverting to the testator’s estate.

One of the main reasons to include discretionary trusts in a Will would be to allow for tax planning in the beneficiaries’ estates, however this template does not include the various trustee powers needed to enable this. The use of this template would therefore create a cumbersome and complex trust, which needs to comply with the various regulatory requirements imposed on Discretionary Trusts, but without the trustee powers needed to take advantage of this type of planning.

Summary

Although you could use ChatGPT (or other AI software) to prepare a Will for you, the risks associated with it are high and, unfortunately, are unlikely to be spotted until its too late to do anything about it. This could lead to expensive and length litigation for your beneficiaries. This is especially true if you wish to prepare Wills including any type of trust, where the powers included are insufficient. Had these Wills been professionally drafted, the lack of detailed trustee powers (or naming trustees at all) would amount to negligence on the part of the professional. The real danger is that you do not know what you do not know and so it would be near on impossible for a lay person to realise that the Wills fail to do what was asked. If instead a Will is professionally drafted you have the added protection of years of experience, detailed notes of your instructions to prevent challenges to your Will, and insurance in the event that something did go array.

If you would like assistance with preparing your Will, or discussing changes to your existing Will, then please contact Ashley Minott by email or on 01494 893 518.