The doctrine of incorporation by reference allows a separate document, not physically part of a Will, to nevertheless form part of it, but only in very limited circumstances. It is most commonly used to incorporate memoranda dealing with personal belongings or detailed bequests.
The Basic Rule
There must first be a valid Will that satisfies both the common law and Ontario’s Succession Law Reform Act. Only then can another document be “pulled in” to form part of that Will.
Ontario Courts have confirmed three strict requirements:
- The outside document must already exist when the Will is made.
A document created later cannot be incorporated, as that would amount to creating an unattested future codicil. - The Will must describe the outside document as already existing at the time of execution.
References to future documents or changeable documents will not work. - The document must be clearly and specifically identified in the Will.
The Court must be satisfied that the document produced is the very one referred to.
The burden of proving these requirements lies with the person seeking to rely on the outside document.
Recent Case: Re Lacroix Estate (2021 ONSC 2919)
During COVID-19 restrictions, a terminally ill testator prepared a handwritten holograph will stating that her “attached draft Will” was incorporated. Although the handwritten note met the statutory formalities for a holograph will, it did not independently dispose of property. Because the incorporated draft Will could not qualify on its own and the holograph could not stand independently, probate was refused.
Important Considerations
Ontario Courts apply this doctrine very strictly. Where the conditions are met, the doctrine can validate otherwise informal testamentary papers but it will not cure fundamental defects or allow future will-making by reference.
Very often, a Memorandum will be referenced and it might deal with the division of jewellery or furniture in the house. This might deal with hundreds of thousands of dollars. It better be in existence at the time of the Will, it cannot be added afterwards, but often, it is.
Executors, advisors, and drafting lawyers should take care: if incorporation by reference is intended, the formal requirements must be satisfied from the outset.
Brian Madigan LL.B., Broker
www.OntarioRealEstateSource.com