Validity of Wills—incorporation
Validity of Wills—incorporation

The following Wills & Probate guidance note provides comprehensive and up to date legal information covering:

  • Validity of Wills—incorporation
  • Conditions of incorporation
  • The document must be in existence at the time the Will is made
  • The document must be referred to as being in existence
  • The document must be clearly identified
  • Effect of incorporation
  • Further incorporation by the incorporated document
  • Document not found after death of testator
  • Declaration against incorporation in Will
  • Practice
  • more

Conditions of incorporation

A testator may incorporate in their Will a document that has not been duly executed by them, and so make that document part of their Will (the doctrine of incorporation by reference) even though it is unattested. Before the doctrine of incorporation can be applied, the document sought to be incorporated must be:

  1. in existence at the time the Will is made

  2. referred to as being in existence

  3. clearly identified

There are exceptions to this, however.

The document need not be of a testamentary form or character.

The document must be in existence at the time the Will is made

The document must already be in existence at the time the Will is executed; it cannot be one that is to come into existence at a future date.

The onus of proving the identity of the document and its existence at the date of the Will lies on the party seeking to rely on the doctrine. In Singleton v Tomlinson, the testator made a Will in which he directed his executors sell four landed estates named in the Will. The landed estates were detailed in a schedule attached to the Will bearing the same date as the Will, and in the testator's handwriting and with his signature. The question was whether the schedule could be referred to in