Dickens, codicils and the Underwood
August 1, 2022 | View PDF
In a corner of my office is an old Underwood typewriter. It was built sometime around the 1920s, it weighs a ton, and there is no electricity involved in its operation. The keys still work, but if I used it the ribbon would tear. Why is it there? Because it was from the law office of Howard Kirk, my grandfather.
Having the typewriter there is a useful reminder, for me, of my family heritage in the practice of law. But it also serves another function. On those days when the computer is driving me crazy, and I feel like I would love to meet Bill Gates in a back alley and whoop the tar out of him, I can look at that old typewriter and remember that in Grandad’s day, every document had to be banged out from scratch. As an estate planning attorney, it is a lot easier now, since I can copy and paste, and set up templates to be used as the starting point for each new document.
You don’t see this word very often anymore, but every once in a while I still have to do a “codicil” to a will. A codicil is an amendment to a will, leaving most of it in place but replacing or changing certain specific provisions. In the days before computers, if you wanted to change a part of your will, but most of the old will still worked just fine, you would sign a codicil. We can still do codicils today, but why would we create a codicil, when through the magic of word processing we can take the original document from the computer, make the changes to that one section, change the date, and have the client sign a whole new will?
But back in the days before computers, with everything being typed up from scratch, codicils made a lot of sense.
And all of these preliminaries, to get to a point about Charles Dickens.
Every estate planner’s favorite piece of Victorian literature is the Charles Dickens novel “Bleak House”. The interwoven stories in Bleak House revolve around a long piece of probate litigation. The case goes on for years and years, never getting resolved and essentially ruining the lives of most of the potential heirs, who always think that a large inheritance is right around the corner, so they never make anything of their own lives.
And what is the reason for the ongoing probate case? While not much detail is given in the novel, apparently the wealthy fellow who died had left several different wills, with conflicting provisions, but none of them explicitly revoking the prior wills.
The fictional case in Bleak House was based on a real-life case. Before Charles Dickens became a famous author, he was a newspaper reporter assigned to cover what we would call the probate court in London. A very wealthy Englishman had died without a will, and with no wife or children. There were significant questions about who his nearest relatives might be, and apparently his extended family was all over the globe. The real case went on for over 100 years.
While the underlying cause of the probate litigation was different between the fictional case and the real one, both of those cases went on for an extraordinary length of time, with the final results in both cases being that the attorneys fees and other probate costs ate up the entire estate.
So let me circle back around to codicils. When I draft a new will, I almost always include standard language which says that this will revokes any prior wills or codicils which might be floating around out there. That way it is clear that there is a fresh start, that this new will is the beginning, and nothing before it matters. When I occasionally draft a codicil, I can’t use that same kind of language, because I am not revoking the prior will, I am changing a portion of it. If I’m going to use a codicil, I have to be very specific about what part I am replacing.
I have seen people draft their own codicils, and oftentimes it is not clear which portions are being replaced and which are not. For example, let’s say that my original will says that my cabin in Talkeetna goes to my sister. Years later I draft a codicil which says that ‘my real estate’ goes to my cousin, and I don’t make it clear which portions of the original will are being replaced. Does that mean that, because the provision about the cabin was more specific, the codicil meant all real estate besides the cabin? Or does it really mean all real estate?
You have to be very careful drafting a will; an unclear or ambiguous provision can lead to years of probate litigation. But you have to be doubly careful with codicils, because codicils are fraught with danger.
Kenneth Kirk is an Anchorage estate planning lawyer. Nothing in this article should be taken as legal advice for a specific situation; for specific advice you should consult a professional who can take all the facts into account. And please, hire one who has a computer.