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Wills • Components of a Will
WILLS#030
Legal Definition
Incorporation by reference requires that (1) the incorporated writing be in existence as of the date of execution of the will, (2) the will shows the testator's intent to incorporate the writing, and (3) the writing by sufficiently described in the will.
Plain English Explanation
In an ideal situation, a will is fully integrated with all relevant papers stapled together into a single document. However, in the real world, sometimes testators want to include terms and provisions into their will that exist in some other document. In other words, it is possible for a testator to reference a document that exists outside the will (like in a sock drawer) and have the information of that document be incorporated into the final, legal will.
In order for a testator to properly do this, there are a few elements that need to be satisfied:
(1) The external writing that the testator would like to incorporate into the will must already exist, or, at least, exist before the will is executed. In other words, a testator can't incorporate a letter they plan on writing a week after they execute the will, but they can incorporate a letter that was written at any point before the will is executed.
(2) The will itself must demonstrate that the testator wanted to incorporate the external document. This should be pretty obvious. If the will doesn't make mention of the external document and that the testator want's to adopt its terms or information, how can a court know to do so?
(3) Finally, the writing that is to be incorporated must be sufficiently described in the will. In other words, if the will tries to incorporate "the letter kept in the right hand drawer of my desk," but there are 12 letters kept in that drawer, then it is not sufficiently described. Put simply, if a court can't definitively identify what external document is attempting to be incorporated into the will, they will not do so and risk incorporating some other document not intended by the testator.
In order for a testator to properly do this, there are a few elements that need to be satisfied:
(1) The external writing that the testator would like to incorporate into the will must already exist, or, at least, exist before the will is executed. In other words, a testator can't incorporate a letter they plan on writing a week after they execute the will, but they can incorporate a letter that was written at any point before the will is executed.
(2) The will itself must demonstrate that the testator wanted to incorporate the external document. This should be pretty obvious. If the will doesn't make mention of the external document and that the testator want's to adopt its terms or information, how can a court know to do so?
(3) Finally, the writing that is to be incorporated must be sufficiently described in the will. In other words, if the will tries to incorporate "the letter kept in the right hand drawer of my desk," but there are 12 letters kept in that drawer, then it is not sufficiently described. Put simply, if a court can't definitively identify what external document is attempting to be incorporated into the will, they will not do so and risk incorporating some other document not intended by the testator.
Hypothetical
Hypo 1: Bob writes a will leaving all his belongings to Sam. In his will, Bob mentions an old letter he wrote years ago, describing a collection of rare coins. He clearly states that this letter should guide Sam on how to handle the collection. The letter, dated before the will, is well-known to Sam and kept in Bob's safe. Result: The rule of incorporation by reference applies here. The letter existed before the will, Bob intended for it to be part of his will, and it is sufficiently described. Sam can use the letter to manage the coin collection.
Hypo 2: Sam discovers that Bob's will mentions a document outlining the distribution of his digital assets. However, this document was created a week after the will. Result: The rule does not apply because the document did not exist at the time Bob's will was executed. Therefore, the instructions for the digital assets are not legally binding.
Hypo 3: Bob's will references a "detailed list of my books in the living room drawer" for Sam. However, there are several lists in the drawer, and it's unclear which one Bob meant. Result: The rule fails here because the referenced document is not sufficiently described in the will, leading to ambiguity about which list is relevant.
Hypo 4: Bob mentions in his will a specific diary entry detailing his wishes for his pet's care after his death. The diary entry is known to Sam and was written before the will. Result: This situation meets the criteria for incorporation by reference. The diary entry existed, Bob intended to include it, and it's clearly identified in the will.
Hypo 2: Sam discovers that Bob's will mentions a document outlining the distribution of his digital assets. However, this document was created a week after the will. Result: The rule does not apply because the document did not exist at the time Bob's will was executed. Therefore, the instructions for the digital assets are not legally binding.
Hypo 3: Bob's will references a "detailed list of my books in the living room drawer" for Sam. However, there are several lists in the drawer, and it's unclear which one Bob meant. Result: The rule fails here because the referenced document is not sufficiently described in the will, leading to ambiguity about which list is relevant.
Hypo 4: Bob mentions in his will a specific diary entry detailing his wishes for his pet's care after his death. The diary entry is known to Sam and was written before the will. Result: This situation meets the criteria for incorporation by reference. The diary entry existed, Bob intended to include it, and it's clearly identified in the will.
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Related Concepts
In California, what is the exception to the requirement that an incorporation by reference need be a writing in existence as of the date of executing the will?
What is a codicil?
What is an integration?
What is a pour-over will and how is it validated?
What is the doctrine of Acts of Independent Significance?
