Also known as:incorporation by reference · incorporation by reference doctrine
Written by attorneys · grounded in primary & secondary sources — see 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.
Sources & Authorities
How it applies
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.
Select any source to read its text and confirm it supports the definition.
Restatements
Casebooks
Study Supplements
Notebook Incorporated into Will
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
Common questions
Frequently Asked
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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.
Supporting sources
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.
Supporting sources
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
393 Mass. 754, 473 N.E.2d 1084Wills Trusts and Estates
…Because the Oklahoma statute, like G. L. c. 191, § 9, revokes dispositions of property made by will, the court stretched the doctrine of incorporation by reference to render the decedent’s trust testamentary. We do not agree that reference to an existing trust in a will’s pour-over clause is sufficient to incorporate that trust by reference without…