Tuesday, March 29, 2022

Codicils in Fiction and Real Life

A significant part of my legal practice for the last 46 years has involved wills and estates. I have prepared about 2,500 wills and been involved in estate litigation throughout my career. I note how authors handle legal issues and occasionally explore their approaches.

In this post I discuss a codicil to a will in To Those Who Killed Me by J.T. (Jeremy) Siemens. While there is no spoiler as to the resolution of the plot in this post it may give more information than some readers would prefer to have before reading the book.

In the book the victim, Geri Harp, made a codicil to her will shortly before her death giving several million dollars to a lover. I did not think the codicil worked well in the plot. As a lawyer I found it a distraction. It felt like the codicil was added to the existing plot.

There was too much ambiguity for me. I could not tell whether the will was prepared by a lawyer or Geri. Considering her wealth and a reference to her lawyer I would expect the will was done by a lawyer. I doubt the codicil was prepared by a lawyer for codicils are rarely used by lawyers at this time. It is easier to re-write the will. Codicils were used prior to computers to avoid having to write out the will again. There are good reasons for a new will rather than a codicil. I tell testators (the makers of wills) that beneficiaries only need to know your last distribution. A new will avoids the necessity of proving the execution of the will and the codicil. 

In the book it was not stated who were the original beneficiaries of the will. A codicil amends a will. The bequest to the lover meant one or more other beneficiaries received less of Geri’s estate. The change could have provided a motive to disappointed beneficiaries if readers had known whose share was diminished. 

The codicil itself was troubling. There is first a reference to Geri’s daughter, Darci, finding it in her mother’s files and later in the book she said it was printed off a computer which was confusing for only the original signed codicil could be valid. I will assume there was an original signed by Geri. There are no references to witnesses to the codicil.

Unless the original codicil cannot be found you must file the original in court. To attempt to prove a copy of a codicil is difficult as strong evidence is needed that the original was lost rather than destroyed by the maker.

Two years ago our office successfully probated a copy of a will. The original had been taken by the maker from our office after signing with the intention of putting it in a safety deposit box. When the maker died a few months later it was not in the safety deposit box and could not be found. We were able through affidavits to show the court there was no reason in the maker’s life to have destroyed the will and it was lost by him.

If the codicil was a document typed on a computer and printed it could not have been a holograph codicil. In B.C. holograph wills and codicils are not a part of the B.C. Wills Act. To be a holograph codicil, which needs no witnesses, the document must be in the handwriting of the maker of the will. (Below is a link to a post I wrote concerning the holograph will in Michael Connelly’s book, The Wrong Side of Goodbye, and the most famous will in Saskatchewan history.)

The printed codicil in To Those Who Killed Me would normally need two witnesses who are neither beneficiaries nor the spouses of beneficiaries. There are no references to witnesses in the book.

Revisions to B.C.'s Wills Act allow courts to validated documents that reflect the testamentary intentions of the deceased. Substantial compliance effectively allows holograph codicils and the lack of witnesses does not mean the codicil was automatically invalid. A court would make a careful and thorough examination of the evidence around the making of the alleged codicil.

Last year I handled a case that illustrates judicial examination of what is needed for a holograph codicil. I successfully argued in the Nicklen Estate that the notes written on the back of an auto supply store receipt were not a holograph codicil. (A link to the decision is below.)

What was done with the codicil in the book was implausible for it would be obvious upon the original though the approach is clearly simpler than what would have happened had the codicil been judicially examined on the issues set out in this post.

Maybe only lawyers would be interested but I think an interesting sub-plot could have been created dealing with the actual legal issues of the codicil in To Those Who Killed Me. On further reflection the legal sub-plot I suggested might be better in a book that is not a high paced thriller.

I have omitted a discussion on the further legal issues where the beneficiary of a codicil is deceased.




  1. This is really interesting, Bill. I've read several Golden Age/classic novels where a codicil plays an important role in a novel. Agatha Christie's Hallowe'en Party is one of them. But I can see how it wouldn't be nearly as useful in a contemporary novel. I can also see why it's easier, both for the testator and the lawyer, to just remake the will. Thanks for sharing your thoughts on that part of the novel.

    1. Margot: Thanks for the comment. I have not read any of Agatha Christie's books in a long time. I think I should look up Hallowe'en Party.

  2. This is fascinating Bill, I love it when you write about legal matters, and wills provide sure-fire fascination.
    You might be interested in this: We recently made new wills, and although we are not a complicated family there were a few things to consider. Some friends were going through the same process. I asked around and got a recommendation from a retired lawyer whom I knew well and respect. I think the solicitor he mentioned did a fantastic job, he took us through the process, asked us many questions, came up with all kinds of suggestions and sensible comments on our wishes. We came out of the process feeling wholly satisfied, and happy that our wills would serve us well, that many possibilities had been considered and taken care of.
    I mentioned a few things about it to the friends, and they said 'oh, our chap didn't do anything like that, we were in and out in no time.' they then told me that they had chosen the cheapest person they could find.
    Well, I'm sure they will be fine, but the peace of mind our lawyer gave us was a prize well worth paying for.
    If I lived in Saskatchewan I could have come to you!

    1. Moira: Thanks for the kind words. I enjoy writing about legal issues. Choosing the cheapest lawyer sends a shiver through me. Lawyers can be cheap through volume. I do my best to consider and treat each client as an individual. If you lived in Saskatchewan I would have been proud to have you as a client.