Incorporation By Reference

Incorporation By ReferenceIncorporation by reference typically occurs when a trust company is appointed executor and the deceased’s will makes reference to a certain fee agreement entered into between the then client and the trust company to retain their services as executor/trustee and to pay a  fee schedule.

 

Another common example is the  reference to a memorandum of items to be distributed as part of the will, without actually being contained within the will itself.

Re Marshall Estate 39 ETR ( 2d) 87 is such a case re  an undated memorandum of personal items found in the deceased’s personal effects several weeks after death.

The court found that the memorandum had obviously been prepared shortly before the will and was instructions for the will and not meant to be testamentary in character.

No inconsistency existed between the memorandum and the will and the memorandum was simply the memorandum referred to in the will, and those portions of it pertaining personalty were admitted into probate by incorporation of reference .

Theobald On Wills 13th ed.para 275 : “Even though the documents may be invalid as an independent instrument, it will take effect if incorporated by reference in the will, as part of the testamentary disposition”

Re Jackson (1985 ) 2 WWR 91 allowed parol evidence to be admitted for the purpose of determining whether the memorandum was the one referred to in the will.

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                         Tristram aind Cootes, Probate Practice, 23rd ed. (1970), at pp. 699-700, summarizes the reported cases in respect to the requirements to permit the incorporation by reference into a will of a testamentary paper. The requirements are these. The document to be incorporated:

2        (A)    must be in existence at time of execution;

3        (B)    and must be described as then existing;

4        (C)    and in such terms that it is capable of being ascertained; and

(D)  the will must not state that the document is not to     form part of it

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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