Incorporation by Reference

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Presentation transcript:

Incorporation by Reference

Basic Idea Treat written material that is not physically part of the text of the will text as being in the will. A “legal fiction” (pretending).

Requirements 1. Testator must intend to incorporate.

Requirements 2. Incorporated writing must be in existence when testator executes the will.

Requirements 3. Incorporated writing must be reasonably identified.

Issues 1. Validity of incorporated writing irrelevant. Allday v. Cage – p. 225

Issues 2. Codicil incorporates will (basis of republication)

Issues 2. Codicil incorporates will (basis of republication) What result if: a. Valid will + Valid codicil

Issues 2. Codicil incorporates will (basis of republication) What result if: b. Valid will + Invalid codicil

Issues 2. Codicil incorporates will (basis of republication) What result if: c. Invalid will + Valid attested codicil

Issues 2. Codicil incorporates will (basis of republication) What result if: d. Invalid attested will + Valid holographic codicil Hinson v. Hinson – p. 227

Issues 2. Codicil incorporates will (basis of republication) What result if: e. Invalid holographic will + Valid holographic codicil

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