INCORPORATION BY REFERENCE

The method of making one document of any kind become a part of another separate document by alluding to the former in the latter and declaring that the former shall be taken and considered as a part of the latter the same as if it were completely set out therein.

It is common drafting practice to incorporate by reference an existing writing into a pleading, contract, or other legal document in order to save space. The incorporating document, rather than copying the exact words of the existing document, describes it, and a photo-copy is often attached to the incorporating document. This standard practice, however, encounters difficulty with the requirements prescribed by law for a will. If the will is a holograph—a document disposing of property that is written with one's own hand and not witnessed—the attachment might not be in the handwriting of the deceased and, therefore, invalid. If the will is formal, an attachment might violate the requirement that the testator (one who makes a will) or the witnesses sub-scribe (sign at the end of the will) the attachment. If subscription is not required, the incorporated document raises the question whether the testator has declared it to be a part of the will if it was not present at the time the will was signed.

The document that is incorporated is usually not treated as a part of the will itself but as an external source from which the meaning of the will can be determined. This maintains the distinction between actual incorporation, an integration achieved by extensive copying of a document into the pages that constitute the will, and incorporation by reference, which is a figurative rather than literal integration. Incorporation by reference is treated as if it were actually integrated.

Fear of fraudulent substitutions is probably the basis for the legal insistence upon compliance with certain conditions in order to incorporate a document into a will by reference. Certain requirements exist for incorporation by reference into a will. The document to be incorporated must exist at the time the will is executed. The will must manifest the intention of the testator to incorporate the provisions of the incorporated document. The incorporated document must be sufficiently described to permit its identification. Some courts emphasize that the incorporated document comply with the description. Some, but not all, statutes require that the incorporating document refer to the incorporated document as being in existence in addition to the requirement mentioned earlier that it actually be in existence.

Most states presently allow incorporation by reference into wills upon compliance with the foregoing conditions. In the states that permit holographic wills, most allow the incorporation by reference of nonholographic material, even if actual incorporation would otherwise invalidate the will because it is not entirely in the handwriting of the deceased.