07894

Question Analysis (Wills Trusts)

Bill, a widower, duly executed a will. (No validity of Will issue) Bill's will included the following paragraphs:

ONE: I leave my stamp collection to those persons whose names appear from time to time on a memo that can be found in the drawer of my night table in my home. (Incorporation by Reference, Integration)

TWO: I leave the balance of my estate to the Trustees of The Bill Revocable Trust, executed contemporaneously with this will, between myself, as settlor, and the Trust Company, as Trustee to hold in trust thereunder.

The Bill Revocable Trust was embodied in a writing that was properly executed by Bill. Under the terms of Bill s trust, income is payable to Bill for life, remainder to Bill's children, Tory and Rita, in equal shares. Two years later, Tory executed a will that devised all of her property to her cousin, Calvin. One year later, a son, Allan was born to Tory. On Allans first birthday, Tory gave him $10,000. Shortly after Allans third birthday, Tory died, survived by Allan, Bill, Calvin, and Rita. The value of Tory's estate, exclusive of Bills trust, was $150,000.

Five years later, Bill died, without having revoked the will he previously executed. After his death, an unsigned and undated memo was found in Bills home. The memo left his entire stamp collection, valued at $150,000, to his cousin, Nellie. In addition, Bill left stocks and bonds valued at $350,000.

Rita, Allan, Calvin, and Nellie survived Bill.

How will Bill's estate be distributed?

Outline

A. Stamp Collection

1. Integration

2. Incorporation by Reference

3. Codicil

Answer

How Will Bill’s Estate be Distributed?

Bill died testate. Therefore, his estate should be distributed under the terms of his validly executed will.

A. Bill’s Stamp Collection:

The first issue to be determined is whether Nellie has a right to Bill’s stamp collection under Paragraph 1 of Bill’s will.

1. Integration

A writing may be integrated into a will if (1) the testator intended the writing to be integrated, and (2) the writing was present when the testator executed his will.

(1) Testator’s Intent

The testator must intend the writing to be integrated into his will. Bill’s will did indicate that his stamp collection should go to “a memo that can be found in the drawer of my night table.” That reference is evidence that Bill did intend to integrate the memo into his will. However, the memo listing Nellie as the beneficiary of the stamp collection was found “in Bill’s home.” Because the memo was not clearly found in the drawer of Bill’s night table, the reference in Bill’s will may not be sufficient evidence of his intent to integrate the memo into his will.

(2) Presence

To be integrated into a will, a writing must be present when the will is executed. The memo concerning the stamp collection was not present when Bill executed the will.

(3) Conclusion

The will’s reference to memo may not be sufficient evidence of Bill’s in tent to integrate the memo into his will. Further, the memo was not present when Bill executed his will. Therefore, the memo concerning the stamp collection may not be integrated into Bill’s will and Nellie has no right to Bill’s stamp collection.

2. Incorporation by Reference

A writing that is in existence when a will or codicil is executed may be incorporated by reference, if the language of the will or codicil (1) manifests intent to incorporate, and (2) describes the writing sufficiently to permit its identification. In addition, the writing may not be altered after the execution of the will.

(1) Identification of writing

The will must describe the writing with sufficient specificity. Bill’s will did identify “a memo that can be found in the drawer of my night table.”

Writing in existence at execution of will

(2) No alteration subsequent to execution of will

Finally, to be incorporated by reference into a will, the writing must not have been altered after the execution of the testator’s will. In his will, Bill referred to “those persons whose names appear from time to time on the list in his night table drawer. The use of the phrase “from time to time” indicates that Bill contemplated altering the list after he executed his will. Therefore, it is possible that the list was altered after the execution of Bill’s will.

(3) Conclusion

The memo designating Nellie as the recipient of the stamp collection may not have been sufficiently identified, was not clearly in existence at the execution of Bill’s will, and may have been altered after the execution of Bill’s will. Thus, the memo may not be incorporated by reference into Bill’s will and Nellie has no claim to the stamp collection.

3. Codicil

A codicil is a testamentary instrument that adds to, subtracts from, or alters the terms of a preexisting will. To be valid, a codicil must be executed with will formalities or must constitute an enforceable holographic instrument.