INCORPORATION BY REFERENCE: FACTS OF INDEPENDENT SIGNIFICANCE Flashcards
To incorporate an extrinsic document by reference the document must be:
(i) Writing must be in existence at time will was executed
(ii) Will must manifest an intent to incorporate the document
(iii) Will must “describe the writing sufficiently to permit its identification”
EXCEPTION: Will may refer to written statement or list that disposes of tangible personal property (other than money) not specifically disposed of by the will. The written list must be signed by T and must describe the property with reasonable certainty. May be written before or after will executed; may be altered at any time.
T’s will, after making several specific bequests, devised Blackacre “as designated in a memorandum, that I plan to write, and that will be found attached to this will.” After T’s death, her will and a signed but unwitnessed typewritten note were found in an envelope marked “My Will.” The accompanying note read: “I give Blackacre to the American Cancer Society.” The note was dated two months after the date on the will. T’s sole heir was a distant cousin, Henry, of whom she was not fond and from whom she had not heard for many years. Who takes Blackacre?
Not american cancer society - Memo cannot take effect - Our facts fail (i) - Memo written 2 months after
Conjunctive test: Where does Blackacre go, we need more facts, it will got to the residuary beneficiary
“I devise the automobile that I own at my death to my nephew, Ned. I give the sum of $1,000 to each person who is in my employ at death.” Three months after the will is executed T trades his Volkswagen in on a new Cadillac; the effect is to increase the value of the gift to Ned from $1,000 to $9,000. Six months after that T fires two longtime employees and hires three new ones. Then T dies. What is the effect of these events on T’s will?
Doctrine of Independent Significance - Acts having an independent lifetime motive may impact on the will as well (most of the time people do not trade cars or fire employees to change will, rather do it for lifetime reasons) - we allow this to impact the will, Ned gets the cadillac, and new employees get the $$
Modifying will through actions (these actions are not in writing nor have witnesses) (raise concern? - No)
