From The [Legal] Artist:
“Greg,” a prospective client might ask me, “Where can I find a free online form to create my contract/document/will?”
“I don’t recommend doing that,” I would likely respond.
“But isn’t the democratization of the law something to celebrate?” they might retort. “Why are you against progress?”
Just to be clear, I’m not against the public having access to affordable and useful legal information (what do you think this blog is, after all?) and I’m very much in favor of people with genuine financial limitations having SOMETHING rather than nothing. So in a pinch, if you can’t afford a lawyer, a template document can be a useful tool.
. . . .
1. You don’t know what’s in them. The legalese in these forms can be confusing and because of that, the form might contain language that isn’t applicable to your situation, or worse, is actively harmful to your interests. I’ve seen first hand how badly this can go… several years ago I had a client who used an online form to license his work to another party. But because he selected the wrong form, he accidentally ended up selling the rights to his work outright and wasn’t able to get them back. There’s a reason lawyers spend so much time and money on schooling and then years working for other attorneys… to build up the knowledge base and skills needed to understand how to read and write these documents.
. . . .
3. They can’t anticipate what you don’t know to look for. Let’s be honest. You don’t know what you don’t know. That’s why you hire a professional anytime something bad happens with your car, your house, your lower back, etc. Using a form that can’t anticipate your knowledge level means you could be leaving money on the table you didn’t know you had a right to; it could leave out important clauses that protect your interests and include clauses that harm you; it could result in ambiguous terms that neither party can understand; it could force you into arbitration when you’d rather use the court system. You may end up worse than you started because you didn’t know what to look for.
Link to the rest at The [Legal] Artist
PG will share a story from one of his past legal lives when he handled much different legal matters than he does now. He believes it illustrates an extreme case of what can happen when a well-meaning person creates a legal document he/she doesn’t fully understand.
A woman named Lodima Long had an attorney (not PG) prepare a will for her. Perhaps it was because she had worked hard all her life and/or had outlived three husbands, she had a lot more money and property than most of the other people in her family. Lodima was a widow with no surviving children. Her will allocated her money and property among a wide variety of different relatives.
Lodima signed the will and it was properly witnessed and notarized. Lodima left the attorney’s office with her valid will in her purse.
Several months thereafter, Lodima decided to take an extended trip to visit a large number of her relatives. She took her will with her.
Apparently, as she visited various of her relatives, she decided to make changes in how her estate was to be divided. Lodima started crossing out parts of her will and making changes to it. In pencil. The resulting document was full of deletions, additions, erasures, lines, arrows and tiny comments.
After a few months, Lodima returned home with her will. She then proceeded to die.
A couple of Lodima’s extended family members discovered the will among Lodima’s belongings after the funeral. They were named in the will. They read the will. A period of time passed. The family members brought the marked-up will to an attorney to start the probate process.
By the time PG was hired by a handful of Lodima’s heirs, her probate had been a contested proceeding for 13 years. About 15-20 attorneys were involved (the number had varied from time to time during the pendency of the probate because some heirs had died and left heirs of their own and a couple of the original attorneys plus the attorney who drafted the original will, had also died.).
PG managed to settle the matter by the simple method of asking that the judge set the case for trial. Since nobody (including the judge) was at all anxious to attempt to prepare for what was certain to be a long and messy trial with a lot of witnesses calling each other liars, the judge summoned the sheriff and several deputies to the courtroom. With muscle at hand, the judge threatened to sequester all the parties and their attorneys in the courthouse until a settlement was reached, no matter how long it took. The various and sundry parties then managed to agree on a settlement that parceled out Lodima’s estate to her various and sundry heirs in a manner that was definitely not consistent with Lodima’s intentions, whatever they might have been.
BLEAK HOUSE by Charles Dickens. Sadly as true now as was true then.
Most states’ lawyer associations have a pro bono service for writers and other creatives to offer advice. Check into it.
I’ve collected a number of resources for writers including a link to Neil Gaiman’s writer’s will form to give you some ideas. Here you go.
http://mbyerly.blogspot.com/2015/08/author-wills.html
http://mbyerly.blogspot.com/2016/08/an-author-will-and-other-things-you.html
I once had to advise a client on a dispute with a builder. A home building contract in Australia commonly includes a “liquidated damages” clause, which provides that a builder will pay damages of $X per day for each day the building is not completed beyond the due date. Such clauses are for the benefit of the builder and will often insert a nominal amount, say $10 per day or $20 per day which usually proves to be far less than the damages actually suffered by the home owner. This particular builder not only didn’t want to pay a lawyer, but apparently didn’t want to pay any amount whatsoever for late completion. So the builder removed the liquidated damages clause, thereby making himself liable for the actual damages suffered by the home owner!
Another good example which often causes problems in wills and estates is a “per stirpes” type clause in a will. Put very simply and by way of example only, imagine a man with two children, who makes a will dividing his estate equally between them. One of those children dies before the death of the testator, leaving a child of his own. If there is a per stirpes type clause, the child of the deceased child will take the share of their dead father. If not, the remaining child will take the whole estate, leaving the grandchild concerned with nothing. I have seen this cause trouble a number of times in the real world, with beneficiaries arguing whether the testator really intended to leave nothing to the child of a deceased child. In one case I know of, there were 5 surviving children, one of their siblings having died many years before the death of their mother, leaving a child of his own. The will did not have a per stirpes clause. 4 of the 5 surviving children agreed that their mother would have wanted the child of their dead brother to have his fathers share. One did not. That one took his whole share. The other 4 shared their share with the grandchild by agreement between them.
Then there’s the problem of active incompetence and/or malice on the part of those who author the “forms”… especially when those who author the “forms” are employed by “legal publishers” and have little or no background (experience, and often even academic) in the particular field, or whose only experience is as transactional lawyers on one side only (e.g., “the General Counsel at Publisher X,” and PG probably knows which form book I’m referring to).
Three examples from publishing will suffice. I emphasize that both of these examples appear in both generally available online form publishing contracts… and in the boilerplate offered by more than one Big Five commercial publisher and “endorsed” in the leading multivolume treatise on Entertainment Law, which is available to the public at almost all law-school law libraries and many other publicly accessible law libraries (such as the ones in Cook County, Illinois; Tarrant County, Texas; Los Angeles and Orange Counties, California; and the District of Columbia).
(1) Under the Bankruptcy Code of 1978 (11 U.S.C. § 362), a clause purporting to unwind a transaction — often described by some variation on “return the rights” — at the moment a party to that contract declares bankruptcy isn’t just unenforceable. It is void, meaning that it never had any effect. Indeed, attempts to proceed as if that clause had had some effect have been treated (under some admittedly unusual, but not unforseeable, circumstances… including at least two entertainment-industry fiascos this century) as prima facie proof of intent to commit bankruptcy fraud. That means “boucoup attorney’s fees even when not referred for prosecution but just treated as equitable grounds to deny a claim.” I’m of the firm opinion that no contract should include unenforceable clauses, let alone void clauses, especially when that clause misleads one or both parties concerning their rights.
(2) Through a combination of the adoption of the Copyright Act of 1976 and various treaty and other international-law changes in the 1970s, it has been forty years since including the Philippines as a “domestic territory” alongside the US has been appropriate (and, arguably, even legal). If you look at most commercial publishing contracts from “second-level” publishers, though — and even from one NYC conglomerate — you’ll see inclusion of the Philippines as a US domestic territory routinely, and the publishers generally refuse to strike it.
(3) Some states, and especially state courts, will not accept a choice-of-law clause that refers to a “stranger state” — one that has no relationship to the transaction at all. That means, at minimum, that a choice of law clause selecting New York law (and, worse yet, a choice-of-venue clause selecting New York City) is highly suspect when the publisher is in, say, Chicago (with no New York office) and the author is in, say, Wyoming. Of course, if you don’t understand what “choice of law” means, then you have no business using a form contract anyway.
And the less said about the continued misuse of language and presumptions drawn from the law of outright sales to licenses entered into under the Copyright Act of 1976, the better.
Excellent points.
The bankruptcy clauses are my personal favorites.
Reminds me of something from my days in the financial industry. Way back then (1980s), LLPs were buying purchase options on big chunks of ranch land that were way outside of the city. There was a rather large brouhaha when one came back from the landowner with an insertion from his lawyer. Something like “option term limited to one year from the date of this contract, renewable on the same terms by either of the original parties to this contract.”
I don’t think I ever knew whether the modified contract was executed. Definitely don’t know how a bankruptcy court would have viewed it.
Opinions?
You’re not trying to get fodder for an exam question in the first-year Property class, are you?
I have no opinion not knowing the jurisdiction. And neither should anyone else… especially not anyone in the real estate industry. Although that does make me want to go watch Local Hero again (which was based on real circumstances and hewed closely enough to established fact that no UK libel lawyer would touch it).