Wills often deal with personal property by referring to a memorandum that sets out how the personal property is to be distributed. Usually, the memorandum is not executed in accordance with the requirements of the Succession Law Reform Act, or similar legislation. How effective is such a memo?
A memorandum, even if not properly executed, will be “incorporated by reference” and found to part of a valid will if:
a. the memorandum is referred to in a duly executed testamentary instrument;
b. the memorandum is in existence at the time of the execution of the testamentary instrument; and
c. the memorandum is “ascertainable” – that is, there is specific reference to a specific document. The reference to the document must make it identifiable: see Black Estate v. Black, 2006 CarswellOnt 9030, 32 E.T.R. (3d) 282 at para. 19.
Reference in the will to a document that is to be created in the future can be fatal to the application of incorporation by reference. However, reference to a memorandum that does not exist at the time the will was executed, but exists at a time when a codicil confirming the will is executed may result in a valid incorporation by reference: See Re Lady Truro (1866), L.R. 1 P.& D. 201, referred to in Hull, Probate Practice, 4th ed, p. 83.
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Paul Trudelle – Click here for more information on Paul Trudelle.