Innovations in estates law: How legal tech is revolutionizing death

The legal profession is often criticized for its archaic and antiquated appearance. Images of a lawyer wheeling around a 30-kilogram, 40,000-page file-folder that, if digitized, could fit on an IPhone or draped in robes (or sporting a wig in the U.K.) help to drive the stereotype. In the courtroom, when liberty, property and reputation hang in the balance, the processes relied on can operate, technologically, decades behind even an elementary school classroom.

How the law deals with end-of-life planning is not immune to this stasis.

Jordan Atin, counsel at Hull & Hull LLP, is among those using technology to change that.

“I'm just a wills and estates guy. That's all I do is draft wills,” he says, adding that how those wills are planned “has not changed in 500 years.

“You sit on one side of the desk, the lawyer sits on the other side of the desk and they say to you, ‘So tell me what you own. Tell me all the names of your kids. What do you want to do with this? And what do you want to do with that?’ and the lawyer takes down notes and then produces this big, thick document that no one really understands,” Atin says. “It's still being done in 99.9 per cent of situations that way.”

But succession plans have never been more relevant. As baby boomers age, retire and die, an unprecedented sum will be bequeathed. Wealth Professional Canada reported in 2018 that between 2016 and 2026, around $1 trillion will pass through inheritance in Canada.

But there are signs Canadians could muff the handoff. A 2018 poll from Angus Reid found that more than half of Canadians don’t have a will, only 35 per cent have one that is up to date and 18 per cent of those without a will said it was because it’s too expensive.

Filling these gaps are a torrent of legal tech products built to serve lawyers and clients in wills, trusts and estates.

Five years ago, Atin and Hull & Hull co-founder Ian Hull created an AI-powered, will-building tool that, depending on the situation, types of assets, tax status of family members and other considerations, provides advice about how to arrange the estate plan.

“It's a simple process but extremely powerful. [It] covers every kind of conceivable option. But for the client [it] is straightforward, simple and visual,” Atin says.

Atin, an adjunct professor at Osgoode Hall Law School and a certified specialist in estates and trusts, says Hull e-State Planner is not about saving time. Although the tool has made him more efficient drafting wills, he says, clients appreciate the real-time visual representation of the plan specifics they are trying to communicate to their lawyer.

“It's actually value added rather than saving time,” he says.

Legal tech products such as Atin’s and Hull’s are popping up in every practice area.

For Willful CEO Erin Bury, her idea was inspired by a negative experience with the status quo.

Bury and her husband Kevin Oulds co-founded Willful in 2016 after an unexpected death in Oulds’ family put the complexity and difficulty of end-of-life planning front and centre in their lives.

“And while that person did have a will, they had never discussed end-of-life planning — whether they wanted to be buried or cremated or what type of funeral they wanted. So, his family was arguing over all of this stuff, while trying to plan it,” Bury says.

“Being a millennial who used a lot of text-driven apps, [my husband] just wondered why the estate-planning process hadn't been touched by technology and was still being done the same way as it had been 50 years ago,” she says.

The original plan for the app was to address a person’s death-related interests outside of the scope of a will — such as funeral wishes, subscriptions, online subscriptions and other aspects of a person’s digital footprint, she says. But research led them to find that people didn’t want to think about their own death and the “must-have” was the will creation itself. They launched the will-making app Willful in May 2017. It began in Ontario, has since expanded to five provinces and Bury says they plan to reach across Canada by 2020.

Neither is a lawyer by trade. Bury and Oulds partnered with estate lawyers from across Canada to create Willful’s legal content and initially found it difficult to find practitioners who wanted to assist in their automation.

“Because, obviously, we're calling them and saying, ‘Hey, can you partner with us to create legal content, so people can use our service to avoid coming to you?’” she says.

However, Bury found there “isn’t a tonne of crossover” between Willful’s customer base and clients designing $2,000 wills in their lawyer’s office. The hardest part, she says, is getting people to think about estate planning to realize they need to get it done.

To help nudge people toward addressing that unpleasant topic, Sharon Hartung, a retired aerospace engineer for the Royal Canadian Air Force and an IBM executive, wrote Your Digital Undertaker. Through her exploration of estates law and background in tech, Hartung identified an incoming shift in life’s leftovers.

“I really began to realize that, in the digital age, it's going to get really interesting for us in terms of how the estate industry is going to deal with our digital footprint, notwithstanding the transformation that's about to happen with the largest wealth transfer and the impact of technology,” she says.

The internet will affect estates lawyers in three ways, she says. First, clients will now have digital assets: email, social media history, gaming tokens, cloud repositories and crypto-currency. A spokesperson from Deloitte Canada told The Globe and Mail that, by 2020, the average Canadian will have digital assets worth at least $10,000.

Second, there is new law emerging to change the role of an executor to fit a digital life. The Revised Uniform Fiduciary Access to Digital Assets Act gives executors a legal method of managing digital assets in the U.S., and similar laws appear to be on the way in Canada, she says.

Third, “technology is the new player at the estate planning table,” as tech entrepreneurs unleash new products like Willful and Hull e-State Planner.

NoticeConnect is also such a product. Founder Patrick Hartford was studying for the estates section for the bar exam and came across the practice of publishing notices to creditors. The expensive and mostly fruitless ordeal struck him as an obvious gap that could be filled with an online service. 

“Though it was really, I think, a way to avoid studying for the bar, I thought maybe this could be done online. And it turned out there was no reason that couldn't be,” he says.

Hartford’s company created a website for publishing, accessing and managing legal notices and connecting them with their intended audience. In 2017, the company brought a test case to the Ontario Superior Court and the ruling confirmed that NoticeConnect satisfied the requirements of the Trustee Act. 

In the process, Hartford also found there was a need for a centralized will registry and so his company recently launched Canada Will Registry. At the time of writing, they have 84,000 registered wills, 730 law firms using the product and, once they reach 100,000 registered wills, they’ll implement a search function, Hartford says. 

“We want it to be the estate equivalent of a title search in the real estate context,” he says.

Editor's Note: This article was corrected to clarify that NoticeConnect and the Canada Will Registry are two distinct products.