Also known as: adopt by reference · adopted by reference · adopting by reference · adoptions by reference · incorporation by reference
Written by attorneys · grounded in primary & secondary sources — see below
A doctrine permitting one writing to incorporate the terms of another existing document by explicit reference. The reference must identify the incorporated writing with reasonable certainty and the writing must have been in existence when the referring document was executed unless a statute provides otherwise.
Testator Alice Atkins executes a will that pours the residue of her estate into the trustee of a revocable trust she created years earlier. The will refers to the trust by name and date of execution. Because the trust instrument existed when the will was signed, the doctrine validates the disposition and the trustee receives the assets to administer under the trust terms.
Testator Aaron Adams executes a will directing that his construction equipment pass according to a separate unsigned inventory list kept in his office. State law permits such unattested writings. The list therefore controls distribution even though it lacks independent significance and does not meet incorporation requirements.
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Plaintiff Anika Anand files a complaint that incorporates by reference the factual allegations from an earlier motion. The later pleading thereby includes those facts for all purposes without restating them.
Investor Audrey Ashton signs a two-page subscription form that expressly incorporates the terms of a fifty-page partnership agreement available on request. The form binds her to the referenced governance and fee provisions upon admission as a partner.
Testator Albert Allen executes a will pouring assets into a scholarship fund whose terms appear in a donor agreement he signed years earlier. The will identifies the agreement by date and parties, allowing the fund to receive the assets under the pre-existing terms.
Defendant Andrew Avery files an answer that adopts by reference the affirmative defenses set forth in a co-defendant's earlier motion. The court treats those defenses as part of Avery's pleading for all purposes.
The will must manifest intent to incorporate the writing. The writing must have been in existence when the will was executed. The will must identify the writing with reasonable certainty.
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No. Only a writing in existence at execution may be incorporated by reference. A later writing may be given effect only by statute or independent significance.
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Adoption by reference requires explicit reference and existence at execution. Independent significance validates a reference when the external document has meaning apart from the will regardless of formal incorporation.
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Yes. A statement in a pleading may be adopted by reference in the same or another pleading or motion. An exhibit attached to a pleading becomes part of it for all purposes.
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When permitted by statute a will may devise property according to a separate unattested writing even if the writing lacks independent significance and does not satisfy incorporation requirements.
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…385 U. S. 511 (1967). [^maj-15]: The limitation on advertising by attorneys in Arizona seems to have commenced in 1919 with the incorporation by reference of the American Bar Association's 1908 Canons of Professional Ethics into Arizona's statutory law. 1919 Ariz. Sess. Laws, c. 158. [^maj-16]: Indeed, our decision today on the Sherman Act…