Estate of Norton

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.

Facts. The decedent had made several wills before his death. After his death in a safe deposit box was found an eight page document which the Propounder, Teab Norton, attempted to admit to probate as the last will and testament of his father. The first six pages were stapled to a cover sheet and did not bear the signature of any witness or notary but did have the decedent’s signature in the corner of each page. The seventh page was titled “Codicil to Last Will and Testament of Lawrence Norton” and after words of disposition contained the decedent’s marked signature and the signature of two witnesses. The last two pages were found stapled together and then stapled to the cover sheet. Decedent’s granddaughter testified that she was instructed by the decedent to staple the two pages to the copy of his will so that they would “be good.” The trial court granted the Respondent’s motion for judgment notwithstanding the verdict and this decision was affirmed by the Court of Appeals. T
he Court of Appeals concluded that the first six pages did not constitute a legally valid will because of a lack of witness signatures and that the codicil, although valid, did not incorporate the first document. Propounder now appeals.

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.