Validity of a Will – Can Documents Referred to in a Will be Incorporated into the Will?

Date: Sep 12, 2012
Document Type: Article

Where documents are referred in a testator’s will but are not duly executed in accordance with statutory requirements, i.e. signed by the testator in front of not less than two witnesses who also signed the document in front of the testator and each other, those documents may be incorporated into the Will and included in the probate if they fulfil the following 3 requirements:

1.    the document must be referred to in the Will

2.    the reference must be sufficient to indentify the document

3.    the reference must be to a document which was in existence, at the time the will was made.

In the 2000 case of Tracey v Edwards, the Judge held that non-written material such as an audiotape or a videotape may be incorporated by reference, provided the requirements for incorporated documents as set out above are complied with.

In that case the Judge relied on the definition of “document” in section 21 of the Interpretation Act 1987 which is now incorporated in section 3(1) of the Succession Act.

A document which is not validly incorporated into the deceased’s Will by the application of the above principles may nevertheless qualify for a grant through the exercise of the Court’s power to admit informal documents to probate – section 8, Succession Act  2006.

An application to incorporate documents into the Will needs to be made to the Court

A will that refers to any extrinsic document needs to be drafted so as to incorporate the above requirements.

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