While modern artificial intelligence (“AI”) has already proved an immensely useful tool, with IBM’s Watson serving as an early example of a natural language processor able to receive and respond to plain language inquiries in plain language with a high degree of accuracy, it has also proven to have its limitations. Newer systems, such as ChatGPT and Google Gemini, are becoming ubiquitous and, to the extent these systems are designed to be responsive to inquiries, they are limited by factors such as the clarity and precision of the questions posed to them.
In the legal context, what we have seen are several examples of “AI hallucinations” finding their way into the pleadings of cases before the courts, generally in the form of non-existent case law being cited in support of a party’s position (see, for example, this case). In fact, the judiciary is becoming vocal about this issue. Unfortunately, however, these are only the obvious examples. Original thought can be imitated, and even sound convincing, but be subject to subtle flaws. Such uses can be difficult to discern, and prejudicial to clients.
What I discuss here is future use of AI in the context of probate applications.
Probate Applications: Improvements for Lawyers and Clients
Currently, there exist AI tools capable of assisting in the preparation of materials for court proceedings, including an Application for a Certificate of Appointment of Estate Trustee (“probate Application”), in various capacities, and an Application to Pass Accounts. These systems are impressive and go so far as to receive information in original form and to then, through the aid of optical character recognition, populate the underlying forms. For example, you provide the system with a scanned bank statement, and the system identifies the details of transactions for the period of the statement and where to assign those transactions in an underlying accounting.
What I see in future is an entirely digital process for the filing of a probate Application. This will require certain changes, as, at minimum, an original death certificate and bank draft in payment of estate administration tax are typically filed in hard copy with the Court. If a person dies with a will, the original will would likewise be expected to be filed in such manner. In resolution of these issues, I see Ontario ultimately permitting the use of electronic wills on equal terms as physical wills, much the same as British Columbia. I also see electronically issued death certificates becoming the norm, and the courts adopting a secure electronic payment system with seamless transfer of funds, subject to certain requisite queries posed to the transferor to ease the accounting for such funds on the part of the courts.
With a fully electronic method of filing for probate Applications, I expect AI tools will then be able to not only assist with the preparation of probate Application materials, but to then also aid in filing them in their entirety. As such systems become more sophisticated, they will become less reliant on human input – though human involvement is unlikely to be entirely eliminated, as, if nothing else, a certain level of interaction with the information provider is needed to clarify ambiguities.
When the materials are finalized, the user would simply hit “send”, respond to a few gatekeeping questions, and the probate Application would be filed without need for supplementary filing of original documents in hard copy.
Probate Applications: Improvements for the Court
It is important to acknowledge that our judiciary is overwhelmed. In increasing the ease with which a probate Application can be prepared and filed, there is likely to be a corresponding increase in the workload placed upon our courts.
What I expect in this regard is that AI tools will be developed for the courts, allowing for the assignment of matters to the classification of “contested” or “uncontested”, and for memos to be produced providing recommendations and outlining the justifications for those recommendations. For example, a matter is flagged as being uncontested, a memo is produced recommending the issuance of a Certificate of Appointment, and a brief outline of the facts is presented as justification for the recommendation.
These AI tools will not replace judicial discretion, but they should enhance efficiency in the review and analysis of filed materials, particularly in the case of uncontested matters. I say this noting that modern AI tools are currently insufficient to provide the confidence necessary for a judicial decision to be reliant upon them. However, as these systems continue to improve over time, I believe there will come a moment when these tools are considered sufficiently reliable for certain uncontested Certificates and Orders to issue more or less automatically.
In the case of contested matters, I do not see humans allowing for the complete abdication of the judiciary in favour of the fact-finding and decision-making capabilities of AI systems, including eventual artificial general intelligence (“AGI”) systems. Judicial decision-making can generally be made more efficient through the augmentation afforded by these systems, but I do not envision our Justices being entirely supplanted by machine minds where the facts are in dispute.
For those interested in further reading, we invite you to review our blog posts on estate administration.
— Michael von Keitz