Also known as: incorporate by reference · incorporated by reference · incorporating by reference · incorporation-by-reference
Written by attorneys — see sources below.
An evidentiary doctrine permitting a primary document to include the contents of a secondary writing by explicit reference. The secondary writing must have existed when the primary document was executed. The primary document must manifest an intent to incorporate the writing. The secondary writing must be identified with reasonable certainty.
Malik executed a formal will leaving film residuals to persons listed in his royalty instructions memo. The memo existed months earlier and matched the will's description exactly. The court treats the memo as part of the will because the will manifested intent and identified the memo with reasonable certainty.
Eli's will directed division of equipment and grain as indicated in his harvest notebook. The single ledger bearing that title already existed at execution. The notebook controls distribution because the will manifested intent and described the writing sufficiently for identification.
Daniel's will poured rental properties into a schedule attached to his estate planning binder. The schedule existed at execution and was the only document matching the will's description. The pour-over devise is validated by incorporation by reference.
Helen Nesmith's will directed tangible property to persons designated in a memorandum known to her executor. The memorandum existed at execution and was identified with reasonable certainty. The memorandum receives effect as part of the will.
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.
View caseA primary contract explicitly refers to and adopts the terms of an attached secondary schedule that existed at signing. The schedule is identified with reasonable certainty. The schedule's provisions become part of the primary contract.
Phillips Petroleum Company, a Delaware corporation with its principal place of business in Oklahoma, produced or purchased natural gas from leased land in 11 states during the 1970s. It sold most of the gas in interstate commerce at prices regulated by the Federal Power Commission, later the Federal Energy Regulatory Commission. Beginning in the mid-1970s Phillips proposed price increases. It collected higher amounts subject to refund with interest if disapproved. Phillips suspended royalty payments to lessors until final Commission approval. It paid the suspended royalties of $3.7 million in 1976, $4.7 million in 1977, and $2.9 million in 1978 without interest after the increases were approved. In 1979 the Commission began investigating overcharges. In 1983 it issued an opinion ordering refunds. Royalty owners Irl Shutts, a Kansas resident, and Robert and Betty Anderson, Oklahoma residents owning leases in Oklahoma and Texas, filed suit in Kansas state court seeking interest on the suspended royalties. They sought to represent a class of 33,000 royalty owners later reduced to 28,100 members after 3,400 opted out and 1,500 could not be notified. Fewer than 1,000 class members resided in Kansas and only about one-quarter of one percent of the leases were located there. The Kansas trial court certified the class under a state statute modeled on Federal Rule of Civil Procedure 23 on an opt-out basis. It sent first-class mail notice describing the action and the right to opt out. The court applied Kansas law to award interest at Commission rates followed by the Kansas post-judgment rate of 15 percent. After the Kansas Supreme Court affirmed, the United States Supreme Court granted certiorari in 1984.
View caseA statute expressly incorporates by reference an enforcement provision from another statute. The referenced provision existed when the incorporating statute was enacted. The incorporated provision supplies the enforcement mechanism.
In 1967 Congress enacted the Age Discrimination in Employment Act, which initially applied only to private employers. In 1974 Congress amended the Act through the Fair Labor Standards Amendments to extend its substantive requirements to the States. Congress redefined the term employer to include a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State. The same legislation also amended the incorporated Fair Labor Standards Act enforcement provision to authorize suits against any employer including a public agency in federal or state court. In December 1994 Roderick MacPherson and Marvin Narz, associate professors ages 57 and 58 at the University of Montevallo in Alabama, filed suit alleging age discrimination, retaliation for filing charges with the Equal Employment Opportunity Commission, and disparate impact from an evaluation system. In April 1995 J. Daniel Kimel, Jr., and other current and former faculty and librarians over age 40 at Florida State University and Florida International University filed suit against the Florida Board of Regents alleging that the failure to allocate previously agreed market-adjustment salary funds had a disparate impact on employees with longer service records. In May 1996 Wellington Dickson filed suit against the Florida Department of Corrections alleging failure to promote him because of his age and in retaliation for grievances concerning age discrimination. The District Court in the MacPherson case granted the university's motion to dismiss on Eleventh Amendment grounds. The District Courts in the Kimel and Dickson cases denied the state defendants' motions to dismiss. The United States intervened in all three cases. The Court of Appeals for the Eleventh Circuit consolidated the appeals and held that the ADEA does not abrogate the States' Eleventh Amendment immunity. The Supreme Court granted certiorari to resolve a conflict among the Courts of Appeals.
View caseThe 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.
Supporting sources
Yes. The memo need not satisfy will formalities. It must merely exist at execution, be referenced with intent, and be identified with reasonable certainty.
Supporting sources
Physical attachment is not required. The will's language must still manifest intent and identify the writing with reasonable certainty even if the writing is not attached.
Supporting sources
No. Only writings in existence at execution qualify. Later writings may be validated by other doctrines such as independent significance or statutory authority.
Supporting sources
A pour-over devise may be validated by incorporation by reference when the will identifies an existing inter vivos trust instrument with reasonable certainty and manifests intent to incorporate its terms.
Supporting sources
…235 Kan. 195, 221, 679 P. 2d 1159, 1180 (1984). Respondents contend that the trial court and the Supreme Court actually incorporated by reference the opinion in Shutts, Executor , 222 Kan. 527, 567 P. 2d 1292 (1977), where the court looked to the Texas and Oklahoma interest rate statutes and found them inapplicable. We do not think…