Legal Definitions - doctrine of incorporation by reference

The doctrine of incorporation by reference is a legal principle, primarily applied in the law of wills, that allows a will to include and give legal effect to the contents of a separate document, even if that separate document was not formally signed and witnessed as part of the will itself. This means that a will can refer to another document, and that document's provisions will be treated as if they were written directly into the will.

For this doctrine to apply, three main conditions must be met:

• The will must clearly express an intention to incorporate the separate document.
• The separate document must have been in existence at the time the will was signed.
• The will must identify the separate document with sufficient clarity and certainty, so there is no doubt about which specific document is being referred to.

When these conditions are satisfied, the referenced document becomes a legally binding part of the will, just as if its contents were explicitly included within the will itself.

Examples:

• Example 1: A Will Referencing a List of Personal Items

  Imagine a will that states, "I give all my tangible personal property as specified in the separate document titled 'My Personal Property Distribution List,' dated October 26, 2023, which is located in my desk drawer at home."

  This illustrates the doctrine because the will itself does not list every piece of jewelry, artwork, or antique furniture. Instead, it incorporates a separate list. The will clearly expresses the intent to include this list, identifies it precisely by title and date, and even specifies its location. Assuming this list existed on or before the date the will was signed, its contents would be legally binding for distributing those specific items, just as if they were written directly into the will.

• Example 2: A Will Directing Assets to a Pre-Existing Trust

  Consider a person's will that includes a clause stating, "I direct that my residuary estate be distributed to the Trustee of the 'Johnson Family Living Trust,' dated April 15, 2022, established by me as Grantor, to be held, administered, and distributed according to the terms of that Trust Agreement."

  In this scenario, the will does not detail the complex rules for managing and distributing the trust assets to beneficiaries. Instead, it incorporates the entire trust document by reference. The will clearly intends to incorporate the trust, identifies it by its specific name and date, and the trust document would have been in existence before or at the time the will was signed. This allows the will to direct assets into a pre-existing, detailed financial plan without having to rewrite all those extensive provisions within the will itself.