Also known as: incorporation-by-reference doctrine · incorporation by reference · doctrine of incorporation by reference
Written by attorneys · grounded in primary & secondary sources — see below
A doctrine under which a writing in existence when a will is executed may be incorporated into the will if the will manifests an intent to incorporate the writing and identifies the writing with reasonable certainty. The doctrine supplies a validating basis for references to external documents that would otherwise fail to meet will formalities.
Idina Iverson executed a will that directed her brokerage securities to the trustee of a retention trust identified by name and created through a prior term sheet. The term sheet existed at the time of the will's execution and supplied the trust's terms. The pour-over devise receives validation through the doctrine because the will manifested intent to incorporate the existing term sheet and identified it with reasonable certainty.
Israel Irving's will directed interests in ongoing construction projects to project managers named in a job allocation sheet kept in his office files. The sheet existed when the will was executed and matched the will's description. The reference controls distribution even though the sheet lacks attestation and independent significance because the doctrine permits the will to incorporate the identified writing.
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The will must manifest an intent to incorporate the writing and must identify the writing with reasonable certainty. The writing must also have been in existence when the will was executed.
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No. Only a writing in existence at the time the will is executed may be incorporated. A later writing may be given effect only through a statute authorizing separate writings or another doctrine.
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The doctrine requires the writing to exist at execution and to be identified with reasonable certainty. A statute may permit a will to devise property through a separate unattested writing even when the writing lacks independent significance and fails incorporation requirements.
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Yes when the will's description cannot distinguish among them with reasonable certainty. Extrinsic evidence may resolve ambiguity only to the extent the will itself supplies a sufficient pointer.
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