Also known as:adopts by reference · adopted by reference · adopting by reference · adoption by reference · incorporation by reference
Written by attorneys · grounded in primary & secondary sources — see below
A method by which the contents or terms of one document become part of another document through explicit reference in the incorporating document. The reference must identify the external writing with sufficient certainty and manifest an intent to include it. Once adopted, the referenced material is treated as if set forth in full within the incorporating document itself.
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Federal Rules
Restatements
Study Supplements
How it applies
Common Examples
2
Pour-Over Devise Validated by Reference
Arthur Abrams executed a will directing the residue of his estate to the trustee of an inter vivos trust whose terms appeared in a separate instrument he had signed years earlier. The will expressly identified the trust instrument by date and title and stated that the residue should be added to and administered under that instrument. Because the trust instrument existed when the will was executed and the will manifested intent to incorporate it, the pour-over devise is validated under the doctrine of incorporation by reference.
Separate Writing Authorized by Statute
Amber Alonzo's will directed that her collection of vintage automobiles be distributed to the individuals named in a separate job allocation sheet kept in her garage. The allocation sheet existed when the will was signed but was unattested and contained no independent significance apart from the will. Under a statute permitting such references, the will validly devises the automobiles according to the sheet even though the writing fails the requirements for incorporation by reference.
Common questions
Frequently Asked
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What must a will show to incorporate an external writing by reference?+
The will must manifest an intent to incorporate the writing and must describe it with reasonable certainty. The writing must also have been in existence when the will was executed. Extrinsic evidence may be used to confirm existence and identity but cannot supply missing intent or certainty.
Supporting sources
Does a later signed contract adopt terms from an earlier planning document when the contract calls itself the formalization of that document?
Yes. When the signed contract expressly refers to the earlier document as the source of substantive terms, those terms become part of the integrated agreement. The reference supplies the missing details without violating the parol evidence rule because the parties themselves chose to incorporate the earlier writing.
Supporting sources
Can a statute authorize a will to devise property by reference to an unattested writing that lacks independent significance?+
Yes. When a statute so provides, the reference is effective even though the writing would not qualify for incorporation by reference or independent significance. The statute supplies an alternative validating ground that overrides the usual formalities for such writings.
Supporting sources
May one party in an appellate brief adopt arguments from another party's brief by reference?+
Yes. Under the applicable appellate rule, any party may adopt by reference a portion of another party's brief. This practice conserves briefing space and avoids duplicative arguments while still presenting the adopted points for the court's consideration.
Trusts and Estates Trusts and Future InterestsTrusts · Types of trustsUBEIntermediate