Reference to acts and events outside the will Flashcards
What is the incorporation by reference doctrine?
It allows an extrinsic document, not present when the will was executed, to be incorporated by reference IF:
- Document must be in existence when will executed
- Will must refer to document as being in existence
- Will must describe the document sufficiently to permit its identification (“so there can be no mistake as to the identity of the document referred to”)
July 1, 2002 T executes a will providing that “I devise Blackacre to the persons named in a memo dated May 4, 2002 that I have written and placed in my safe deposit box. I give my residuary estate to my bro Ben.” After T’s death there was found a signed, but not witnessed, memo, that says “Pursuant to my will, I want to give Blackacre to my nephew Norman”
Does Norman take blackacre?
Yes, properly incorporated by reference.
What if T executes a will and it says “In my will I referred to a list that I would deposit prepare at a later date leaving certain items of personal property, and this is it: I give my golfclubs to my friend, Hobie, ….” The document was dated five weeks after the will was signed, and was not witnessed.
Does anyone take via this memo?
NO. Memo didn’t exist when will was executed.
What about under the UPC? Can you incorporate a document after will was made?
Yes, UPC allows for an exception for TANGIBLE PERSONAL PROPERTY, but NOT cash or intangible property. Memo may be written before or after will, and can be altered at any time.
What is the acts of independent significance doctrine?
Inclusion of non testamentary acts during the probate process to prove significance of intent, that are independent of of the will, for tangible items and cash ONLY
T dies leaving a will that provides: “I give the automobile that I own at my death to my nephew. I give the furniture and furnishings in my living room to my sister Sue.” A year before her death, T trades her 1998 Ford in on a brand new Mercedes. Six months before her death, T moves a $25,000 Picasso print from her den and mounts it on her living room wall. What is the effect of these acts on T’s will?
Does Norman take Mercedes?
Does Sue take the Picasso?
Yes, and yes.
Acts of independent significance, also called doctrine of nontestamentary acts.
What if T says I give Norman “the contents of my sea chest?”
Will Norman still get everything?
Yes, can be tangible property and cash only! Does NOT apply to title documents.
