Wills: Incorporation by Reference, Acts of Independent Significance, Pour-over Gifts to Inter-Vivos Trust, Non-Probate Assets

Question 1

When may a document be incorporated in will by reference so that it is considered a part of the will?

Answer 1

1. document was IN EXISTENCE at time will was executed
2. it was SUFFICIENTLY in the will so that its identification is clear
3. there is SATISFACTORY PROOF that the proffered document IS the document described in the will

BUT SEE –> special exception for California tangible personal property

Question 2

What is the CA exception for incorporating a doc by reference?

Answer 2

A decedent may dispose of items of PERSONAL PROPERTY in a writing that does not comply with the requirements for incorporation by reference IF:

1. an unrevoked will REFERS to the writing
2. the writing is DATED and is either:
   (i) in T’s handwriting; OR
   (ii) SIGNED by T
3. the writing DESCRIBES the items with reasonable certainty

NOTE –> the writing may be prepared before or after execution of the will, and may be altered after its initial preparation

NOTE –> total value of personal property disposed of in this matter cannot exceed $25K, and no single item can exceed $5K

Question 3

May holographic wills incorporate PRINTED or TYPED matter?

Answer 3

YES

THUS –> a holographic will can incorporate a defectively executed will

Question 4

May a properly executed codicil validate a prior defective will?

Answer 4

YES

On exam –> properly executed codicil often incorporates by reference a prior defective will, thereby validating it