Will Components: Will Integration, Codicils, Incorporation by Reference, and Acts of Independent Significance

To know who takes under a will, the entire will must be probated. But the will may be more than just the pages that compose it and events not related to the will may alter who takes under it or what they get.

Will Integrity

Wills usually consists of several pages. Those pages that the testator intended to be part of the will constitute the will — what is sometimes called the doctrine of integration. Sometimes, however, the integrity of the will is not clear, especially with holographic wills. When in doubt, the integrity of the will is determined by the coherence of the wording of each page and by page numbers, if they were numbered. Often, the integrity of the will is also determined if they were fastened together, such as with a clip or stapled together. However, because separate pages can be separated over time, the testator would be wise to number the pages as Page # of Total Pages and sign or initial each page.

Incorporation by Reference

In most states—but not Connecticut, Louisiana, and New York—a will can incorporate another document by referring to it. The advantage of this is that the referred document does not have to comply with Wills Act formalities. However, under common law, there are 3 requirements to incorporate a document by reference:

  1. the will must obviously refer to the document as being part of the will;
  2. the document must be identified with reasonable certainty;
  3. the document must have existed at the time of the will execution.

However, §2-513 of the Uniform Probate Code (UPC) eliminates the last requirement, allowing the testator to either write the document later or change it without changing the will. However, the UPC only allows the disposition of tangible personal property in referenced documents, not intangible or real property, or money. Moreover, the UPC requires that the referenced document be signed by the testator (a good idea regardless of jurisdiction), and that both the property and the beneficiaries be identified with reasonable certainty, which is a practical requirement, even if not codified.

Another practical requirement of the referenced document is that it disposes of property not disposed of in the will; otherwise, the will predominates, unless an express clause in the will gives priority to the referenced document.

Using an incorporated document allows the testator to dispose of tangible personalty that would change often during the testator's lifetime without the testator having to re-execute the will or a codicil.

The commentary to §2-513 of the UPC gives this sample clause (slightly paraphrased) to incorporate a separate writing by reference:

I might leave a written statement listing items of tangible personal property. If I do and if my written statement is found and identified as such by my Personal Representative no later than 30 days after the probate of this will, then the listed property should be disposed of in accordance with my written statement to the extent authorized by law and should take precedence over any contrary disposition of the same property listed in this will.

Acts of Independent Significance

Acts of independent significance (aka nontestamentary acts) are events that affect the disposition of the testator's property, but which did not occur because of the will. Most such acts occur when a testator identifies either property or beneficiaries as a general class and the testator changes the details of those classes for reasons other than the disposition of property.

UPC §2-512 states that it does not matter when the event occurs, whether before or after will execution, or before or after the testator's death, and that the event could be the execution or revocation of another's will.

For instance, a testator, who owned a car at the time of the will execution, bequeaths his motor vehicle to his daughter, but then later gets a truck before his death. Although the replacement of his car with a truck changes the gift to his daughter, the replacement is an act of independent significance because the testator probably got the truck because he needed a truck—not because he wanted to change his gift to his daughter.

Acts of independent significance are an effective way to bequeath property that will probably change before the testator's death. For instance, you could bequeath everything in your garage to your brother. You can put things in your garage or take them out without having to change your will because the contents of your garage probably reflect what you want to be there rather than to specifically change the gift to your brother.

Another specific example is naming beneficiaries who are beneficiaries under someone else's will. Suppose you bequeath $1,000 dollars to each beneficiary of your sister's will. If your sister changes the beneficiaries in her will, then this will affect the disposition of your property, but your sister's act of changing her will has independent significance because she probably changed it for her own personal reasons and not because she wanted to affect the disposition of your property.

Codicils

A codicil is a supplement to a will that may add, subtract, or modify elements of the will. The codicil has the same legal requirements as the will, including compliance with the Wills Act formalities and that the testator has testamentary capacity.

The only difference between a will and a codicil is that the codicil modifies the will in some way; hence the codicil incorporates the will. Because the codicil modifies the will, the codicil does not usually dispose of all of the testator's probate property.

When the will is executed, it is said to be published, since that is the date — the publication date — when it comes into existence as a valid will. Unless there is an express clause to the contrary, a codicil re-executes and republishes the entire will so that the effective date for the will's execution is when the codicil was executed; hence, the will is said to be republished by codicil. However, there may be an express clause stipulating whether the codicil re-dates the will; if so, then it is not rebuttable. Otherwise, the assumption that the codicil republishes the will may be rebuttable, if such assumption would be either inconsistent with the testator's intent or create other inconsistencies.

Republication may have important effects. For instance, if a jurisdiction requires that a document incorporated by reference exist at the time of the will's execution, then an incorporated document that was created after the will's publication date but before the republication by codicil can be made a valid referenced document by the codicil.

If the pre-existing will is invalid, then a properly executed codicil does not validate it, but, instead, becomes the will, and may incorporate the pre-existing will by reference, depending on why the previous will was invalid.

In those jurisdictions that do not recognize incorporation by reference, the courts may allow a codicil to republish an invalid will if the will complies with the state's Wills Act formalities, but was invalidated because of an external defect, such as lack of testamentary capacity or with the witnessing,, as long as the codicil itself does not suffer from any defects.