Also known as:incorporation by reference · incorporation by reference doctrine
Written by attorneys — see sources below.
A doctrine permitting a will to give effect to the terms of a separate existing writing that does not itself satisfy will formalities. The will must manifest an intent to incorporate the writing, the writing must exist when the will is executed, and the writing must be identified in the will with reasonable certainty.
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How its tested
Common Examples
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Pour-Over Devise Validated by Reference
Daphne Doyle executes a will that pours the residue of her estate into an inter vivos trust whose terms appear in a document she signed two years earlier. The will expressly refers to that trust instrument and identifies it by name and date. Because the trust document existed at the time of the will's execution and the will shows clear intent to incorporate its terms, the doctrine validates the pour-over disposition even though the trust itself was never funded during Daphne's lifetime.
Statutory Separate Writing for Tangible Property
Danielle Dixon's will devises her rare book collection to the departments and former students listed on her library disposition sheet. The sheet is an unsigned document revised after the will was executed. A state statute authorizes separate unattested writings for tangible personal property described in the will. The doctrine of incorporation by reference is therefore unnecessary, and the sheet controls distribution of the books.
Diana Delgado executes a will that leaves specific paintings to the persons named in her notebook of personal property dispositions. The notebook existed when the will was signed, the will expressly refers to it, and only one notebook matches the description. The doctrine treats the notebook's directions as part of the will, so the named recipients receive the paintings rather than the residuary beneficiaries.
Clark v. Greenhalge411 Mass. 410, 582 N.E.2d 949
In 1972, Helen Nesmith, with assistance from her cousin Frederic T. Greenhalge II, prepared a document entitled “MEMORANDUM.” This document listed forty-nine specific bequests of her tangible personal property. In 1976, she modified that list by interlineations, additions, and deletions. Neither edition mentioned the large oil painting of a farm scene signed by T.H. Muckley and dated 1833 that hung above the fireplace in her mother’s bedroom.
Helen Nesmith executed her will in 1977. The will named Greenhalge as executor of her estate. The will further identified Greenhalge as the principal beneficiary of her tangible personal property except for items she might designate by a memorandum left by her and known to him or in accordance with her known wishes. She kept a plastic-covered notebook titled “List to be given Helen Nesmith 1979” in the drawer of a desk in her study. She periodically wrote entries in it, including one that read “Ginny Clark farm picture hanging over fireplace. Ma’s room.”
Her private nurses Imogene Conway and Joan Dragoumanos observed her writing in the notebook. They heard her state that the farm scene painting was to go to Virginia Clark. Virginia Clark and Helen Nesmith had been close friends since approximately 1940. Clark frequently visited the room containing the painting.
In January or February 1980, Nesmith told Clark that the painting would belong to her after Nesmith’s death. She said she would record the gift in the notebook she kept for that purpose. Nesmith executed two codicils to her will on May 30, 1980, and October 23, 1980. These codicils ratified the will in all other respects.
Nesmith died on January 28, 1986. Greenhalge received the notebook shortly after her death. He distributed property in accordance with the will, the 1972 memorandum, and some notebook entries. He refused to deliver the farm scene painting to Clark because he wanted to keep it for himself. He accepted other bequests to himself that appeared in the notebook. Clark then commenced an action in probate court seeking delivery of the painting.
The probate judge found that Nesmith wanted Clark to have the painting. The judge also found that the notebook was in existence when the 1980 codicils were executed. The Appeals Court affirmed the probate judge’s decision in an unpublished memorandum and order. The Supreme Judicial Court granted further appellate review.
What three requirements must be satisfied for a writing to be incorporated by reference into a will?
The writing must exist when the will is executed. The will must manifest an intent to incorporate the writing. The will must identify the writing with reasonable certainty so that the court can determine which document is meant.
Supporting sources
May a writing created after the will is executed be incorporated by reference?
No. Only a writing in existence at the time the will is executed may be incorporated. A later writing may be given effect under a statute authorizing separate unattested writings or under the doctrine of independent significance, but not by incorporation by reference.
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Does the incorporated writing itself need to satisfy will formalities?
No. The doctrine exists precisely to allow a properly executed will to give effect to a separate writing that lacks will formalities, provided the three incorporation requirements are met.
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How does the doctrine of incorporation by reference differ from a statute authorizing separate unattested writings?
Incorporation by reference requires the writing to exist at execution and to be identified with reasonable certainty. A statute authorizing separate unattested writings may dispense with those requirements and with any need for independent significance, allowing the writing to control even if created or altered after the will.
Supporting sources
411 Mass. 410, 582 N.E.2d 949
…the appellant’s additional argument that the appellee should have been prevented from proceeding at trial on the theory of incorporation by reference, since she allegedly did not specifically raise or argue this theory in any pretrial pleading. Gallant v. Worcester , 383 Mass. 707, 709-710 (1981). The record demonstrates that the…