Brief Fact Summary. Helen Nesmith executed a will and made reference to a document outside of the will that would give guidance on how to distribute her estate. The executor, also a beneficiary under the will, refused to distribute a painting in accordance with a notebook that listed how Nesmith wanted to distribute certain pieces of personal property at her death. The probate judge found that the notebook was incorporated by reference into the will.
Synopsis of Rule of Law. A document may be incorporated into a will by reference if the will makes reference to the document, the document was in existence at the time that the will was created, and is the document is sufficiently identifiable in the will.
The cardinal rule in the interpretation of wills, to which all other rules must bend, is that the intention of the testator shall prevail, provided that it is consistent with the rules of law.View Full Point of Law
Issue. Whether a document may be incorporated by reference into a will if the will refers to the document even though it may not be in the same form as stated in the will, but serves the same function as the document stated in the will, and was in existence at the time the codicils to the will were created.
Held. Yes. A notebook that gives the executor guidance in distributing the testator’s estate may be incorporated by reference to a will that includes the language of a memorandum that serves as a guide to the executor on the distribution of her estate. The language in the will, “a memorandum” does not preclude the existence of more than one memorandum. It also does not preclude the existence of a document in the form of a notebook from being included in the will. The fact that it was not labeled as such does not mean that it was not intended by the testator to be an instruction as to how to distribute her property at death. Since the testator retained the right to amend and alter her will after execution, the notebook is sufficiently described since it guides the executor in distributing her estate at death and the notebook was in existence at death.
Discussion. A document may be incorporated by reference if the will refers to the document and the document was in existence with codicils were made to the will, even if it did not exist at the time the original will was created. Also, the item is sufficiently described in the will even if it is not specifically referred to if it serves the same purpose as is indicated in the will.