Law School Case Brief
In re Estate of Norton - 330 N.C. 378, 410 S.E.2d 484 (1991)
For incorporation by reference, a paper must be described and identified with such particularity as to designate and clearly show, and so that the court can certainly see, what paper is meant to be made part of the will. The instrument referred to must be so described as to manifest distinctly what the paper is that is meant to be incorporated, and in such a way that the court can be under no mistake. Therefore, the essential inquiry here is whether there is: (1) reliable evidence that the paper was in existence at the time of the codicil and (2) a "clear and distinct" reference in the codicil itself, or otherwise, such as to provide "full assurance" that the paper was intended to be incorporated in the testamentary wishes of the decedent.
A decedent had made several wills in his lifetime. He then executed a valid codicil and directed a relative to staple six pages to the codicil so they would "be good." The pages were signed but not witnessed and apparently were part of an earlier will. He stored the stapled documents in his safety deposit box. Upon his death, his son (the propounder) sought to probate the valid codicil along with the stapled six pages. The trial court entered judgment in favor of the other heirs (respondents), who sought to disallow the codicil. On appeal, the Court of Appeals unanimously affirmed the trial court, concluding that the first six typewritten pages propounded as decedent's last will and testament, although designated as such, do not constitute a legally valid will because the codicil did not adequately identify the six pages. The case was appealed.
Can six signed but unwitnessed pages that were insufficient to constitute a will be considered incorporated by reference in a valid codicil?
Affirming, the Supreme Court of North Carolina held that a valid codicil or will could incorporate an otherwise invalid document by reference. In this case, the Court determined that the propounder failed to satisfy the legal requirements of testamentary incorporation by reference or otherwise prove that the eight-page document as a whole constituted the final testamentary instrument of the decedent. The Court held that the test was that (1) the incorporated paper had to be in existence at the time the codicil was executed; and (2) there had to be a "clear and distinct" reference in the codicil itself, or otherwise, such as to provide "full assurance" that the paper was intended to be incorporated in the testamentary wishes of the decedent. The Court found that the first prong was met; however, the codicil did not have any specific reference to the six pages but rather simply stated that it was a codicil to his will. The Court held that as a matter of law, it could not have the "full assurance" that the six pages attached to the codicil were intended by decedent to be incorporated.
Access the full text case
Not a Lexis+ subscriber? Try it out for free.
Be Sure You're Prepared for Class