Incorporation by reference

Wills, trusts and estates

Part of the common law series
Wills
Legal history of wills Joint wills and mutual wills Will contract · Codicil Holographic will · Oral will
Sections Attestation clause Residuary clause Incorporation by reference
Contest Testamentary capacity Undue influence Insane delusion · Fraud No-contest clause
Property disposition Lapse and anti-lapse Ademption · Abatement Satisfaction of legacies Acts of independent significance Elective share · Pretermitted heir Wills and conflict of laws
Trusts
Express · Resulting Constructive
Common types Bare · Discretionary Accumulation and Maintenance Interest in possession Charitable · Purpose · Incentive
Other types Protective · Spendthrift Life insurance · Remainder Life interest Reversionary interest Testamentary Honorary · Asset-protection Special needs (Supplemental Needs)
Governing doctrines Pour-over will Cy-près doctrine Trusts and conflict of laws Dishonest assistance
Estate administration
Intestacy · Testator · Probate Power of appointment Simultaneous death · Slayer rule Laughing heir · Advancement Disclaimer of interest · Inheritance tax
Related topics
Advance directive (Living will) Totten trust
Other common law areas
Contract · Tort · Property Criminal law · Evidence

Incorporation by reference is the act of including a second document within another document by only mentioning the second document.^[1] This act, if properly done, makes the entire second document a part of the main document. Incorporation by reference is often done in creating laws as well as in contract law and trust and estate law.

In law regarding wills, it is a doctrine at common law which allows a testator, or a creator of a will, to dispose of assets in his estate in accordance with a separate document. To be valid, such a document must comply with the following requirements:

it must have existed at the time the will was executed;
the will must describe the document with particularity, so that it may be identified; and
the will must clearly manifest the intent that the document be incorporated.

An exception to the first requirement is made for small gifts of tangible personal property, such as household furniture and items of sentimental value.

Oral instructions can not be used as incorporation by reference. For example, if a testator states in the will that he has recited to a third party the intended disposition of testamentary assets, such attempt to circumvent the requirements of a written will is void.

References

^ Bryan A. Garner, ed (2001). Black's Law Dictionary (2nd pocket ed.). St. Paul, MN: West Group. pp. 341. ISBN 0314257918.