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Incorporation by Reference

Incorporation by Reference. Basic Idea. Treat written material that is not physically part of the text of the will text as being in the will. A “legal fiction” (pretending). Requirements. 1. Testator must intend to incorporate. Requirements.

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Incorporation by Reference

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  1. Incorporation by Reference

  2. Basic Idea • Treat written material that is not physically part of the text of the will text as being in the will. • A “legal fiction” (pretending).

  3. Requirements • 1. Testator must intend to incorporate.

  4. Requirements • 2. Incorporated writing must be in existence when testator executes the will.

  5. Requirements • 3. Incorporated writing must be reasonably identified.

  6. Issues • 1. Validity of incorporated writing irrelevant. • Allday v. Cage – p. 219

  7. Issues • 2. Codicil incorporates will (basis of republication)

  8. Issues • 2. Codicil incorporates will (basis of republication) What result if: • a. Valid will + Valid codicil

  9. Issues • 2. Codicil incorporates will (basis of republication) What result if: • b. Valid will + Invalid codicil

  10. Issues • 2. Codicil incorporates will (basis of republication) What result if: • c. Invalid will + Valid attested codicil

  11. Issues • 2. Codicil incorporates will (basis of republication) What result if: • d. Invalid attested will + Valid holographic codicil Hinson v. Hinson – p. 221

  12. Issues • 2. Codicil incorporates will (basis of republication) What result if: • e. Invalid holographic will + Valid holographic codicil

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