INCORPORATION BY REFERENCE
The method of making one document of any kind become a part of another separate document by alluding to the former in the latter and declaring that the former shall be taken and considered as a part of the latter the same as if it were completely set out therein.
It is common drafting practice to incorpo-
rate by reference an existing writing into a
PLEADING, contract, or other legal document in
order to save space. The incorporating docu-
ment, rather than copying the exact words of the
existing document, describes it, and a photo-
copy is often attached to the incorporating
document. This standard practice, however,
encounters difficulty with the requirements
prescribed by law for a will. If the will is a
holograph—a document disposing of property
that is written with one’s own hand and not
witnessed—the attachment might not be in the
handwriting of the deceased and, therefore,
invalid. If the will is formal, an attachment
might violate the requirement that the testator
(one who makes a will) or the witnesses sub-
scribe (sign at the end of the will) the attach-
ment. If subscription is not required, the
incorporated document raises the question
whether the testator has declared it to be a part
of the will if it was not present at the time the
will was signed.
The document that is incorporated is usually
not treated as a part of the will itself but as an
external source from which the meaning of the
will can be determined. This maintains the dis-
tinction between actual incorporation, an inte-
gration achieved by extensive copying of a
document into the pages that constitute the will,
and incorporation by reference, which is a figu-
rative rather than literal integration. Incorpora-
tion by reference is treated as if it were actually
integrated.
Fear of fraudulent substitutions is probably
the basis for the legal insistence upon compli-
ance with certain conditions in order to incor-
porate a document into a will by reference.
Certain requirements exist for incorporation by
reference into a will. The document to be incor-
porated must exist at the time the will is exe-
cuted. The will must manifest the intention of
the testator to incorporate the provisions of the
incorporated document. The incorporated doc-
ument must be sufficiently described to permit
its identification. Some courts emphasize that
the incorporated document comply with the
description. Some, but not all, statutes require
that the incorporating document refer to the
incorporated document as being in existence in
addition to the requirement mentioned earlier
that it actually be in existence.
Most states presently allow incorporation by
reference into wills upon compliance with the
foregoing conditions. In the states that permit
holographic wills, most allow the incorporation
by reference of nonholographic material, even if
actual incorporation would otherwise invalidate
the will because it is not entirely in the hand-
