Incorporation by reference

A document that is referred to in a will may become part of the will and be admitted to probate together with the will.

Practitioners will be familiar with the notion of a ‘paperclip declaration’. Such a declaration becomes necessary when the testator returns a will to the solicitor with a paperclip attaching, usually, the covering letter. The probate registry will make enquiries before admitting a will to probate where a paperclip mark is evident. The concern is that another testamentary document was attached by the testator that should be incorporated into the will and admitted to probate at the same time.

Incorporation of a will by codicil

Documents may also be incorporated in a codicil and this may even include, in the case of a valid codicil, an earlier invalidly executed will. This happened in the case of Allen v Maddock.

Anne Allen, wife of Joseph Allen, was separated from her husband and was known by the name of Foote. On 1 December 1851, Anne drew up in her own handwriting and sealed a paper, which was described in its commencement as ‘the last will and testament of Mrs. Anne Foote of Bath, which I make and publish for all my worldly substance’. By this instrument, she appointed executors and made several legacies, but did not dispose of the remainder of her property. The paper was attested by only one witness and was therefore invalid.

A few years later, in September 1986 and on her deathbed, she executed a valid codicil headed: ‘This is a codicil to my last will and testament.’ By the codicil, she gave the sum of GBP 100 to her servant Eliza, together ‘with as much of my furniture as, in the opinion of my executor, will be sufficient to furnish a sitting room and a bedroom’. The codicil appointed no executor and contained no other reference to the will. Anne died the next day, on 14 September. The codicil was found in a chest in her bedroom and the paper signed in 1851 was found in another chest that had been in her bedroom until shortly before her death. The paper was enclosed in a sealed envelope, on which were written the words: ‘Mrs. Anne Foote’s will’. No other testamentary paper of any kind was found. The two papers, the 1851 paper, and the 1856 codicil were admitted to probate and this was subsequently challenged. The judge found that provided the reference in a duly executed testamentary instrument to another testamentary instrument is made ‘in such terms as to make it capable of identification”, it is a matter of evidence either written or oral. The only question was whether there was sufficient evidence to identify the paper as the will.

The ruling was followed in Re Heathcote’s Goods where Sophia Matilda Heathcote made a will which was invalid. Subsequently, she made a codicil beginning with the words ‘this is a codicil to the last will and testament of me’. The codicil was written on the same paper as the will and it was proved that she had made no other will. Probate was granted of both documents.

General requirements for incorporation

The general requirements that apply to all cases (and not just where a codicil incorporates an earlier, invalidly executed will) are:

1. The document to be incorporated must already be in existence when the will is executed. If the document comes into existence after the will is executed but before the execution of a codicil confirming the will, this requirement is satisfied because the will itself is treated as having been re-executed at the date of execution of the codicil.
2. The document must be referred to as being already in existence when the will is executed, for it to be incorporated. If the document comes into existence between the execution of the will and a codicil, this requirement is only satisfied if the will refers to the document as being in existence. For example, In the Goods of Smart, the testatrix referred to a gift “to such of my friends as I may designate”. This second requirement for incorporation would have been satisfied had the will read “as I have designated” as there was a codicil that republished the will.
3. The document must be described in the will in sufficient detail to enable it to be identified.
   The main effect of incorporation of a document in a duly executed will is that it is admissible to probate as part of the will. In practice, a testator will often wish to avoid having another document incorporated in a will and forming part of the public record once probate is granted.

This article originally appeared in the STEP Journal.