A properly executed will may incorporate by reference into its provisions any document or paper not so executed and witnessed, whether the paper referred to be in the form of a mere list or memorandum, if it was in existence at the time of the execution of the will, and is identified by clear and satisfactory proof as the paper referred to therein.
The testatrix duly executed a will, which named her cousin as executor of her estate. The neighbor claimed that the testatrix told her that she could have a farm scene painting after the testatrix's death. The devise was written in a certain notebook maintained by the testatrix. Following probate of the testatrix's will, the neighbor sought to compel the executor to deliver the painting to her. The appeals court affirmed the probate judge's decision awarding the painting to the neighbor.
Is a written bequest of personal property contained in a notebook maintained by a testatrix incorporated by reference into the terms of the testatrix's will a valid bequest?
The court affirmed the appeals court's judgment because the probate judge correctly awarded the painting to the neighbor. The evidence supported the conclusion that the testatrix intended that the bequests in her notebook be accorded the same power and effect as those contained in a memorandum under her will. The court concluded, therefore, that the probate judge properly accepted the notebook as a memorandum of the testatrix's known wishes as referenced in her will. There was ample support in the record, therefore, to support the probate judge's conclusion that the notebook met the criteria set forth in the testatrix's will regarding memoranda.