Brief Fact Summary. The Propounder attempted to have an eight page document admitted to probate as the will of his deceased father. The Respondents contend that the last two pages were a valid codicil but that the first six do not constitute a valid will and were not incorporated by reference through the codicil.
Synopsis of Rule of Law. Incorporation by reference requires both that the document referred to be in existence at the time the second is executed but also that there be a clear reference that the document was intended to be incorporated.
Issue. Did the trial court err in awarding judgment notwithstanding the verdict in favor of Respondents because Propounder failed to satisfy the legal requirements of testamentary incorporation by reference?
Held. No. Affirmed. Although there is evidence to show that the first document was in existence at the time the second was executed, there is no reference in the codicil, second document, that it intends to incorporate the first.
Dissent. The requirements of testamentary incorporation by reference were satisfied in this case. The second document is titled “Codicil to Last Will and Testament” and the fact that it is attached to the first six pages resolves the question of what will the testator is referring to.
Discussion. The requirements for incorporation by reference are that the document referred to be in existence at the time the second is executed and two that there be clear reference to give full assurance as to the identity of the extrinsic paper that is to be incorporated. Because the Court is reviewing whether judgment notwithstanding the verdict was proper they must take the evidence in the light most favorable to the Propounder. Even when reviewing the evidence in this light the Court finds that they cannot be assured as to the decedent’s intent to incorporate the first document.