“The terms of any writing which is in existence when a will or trust instrument is executed, including but not limited to a statement of administrative provisions and fiduciary powers recorded in a record office of this State, may be incorporated into the will or trust instrument by reference to it to the extent the language of the will or trust instrument manifests an intent to do so and describes the writing sufficiently to permit its identification.”
Md. Code Ann., Est. & Trusts § 4-107. This provision mirrors the Uniform Probate Code treatment. See Unif. Probate Code § 2-510. Arguably, a pourover will[1] directing assets to an inter vivos trust would be an example of the use of incorporation by reference. Section 4-411 specifically provides for legacies to a revocable trust. This cures one of the problematic aspects of the use of revocable trusts with pourover wills, namely the modification for the revocable trust from time to time without a concurrent modification of the will. Arguably, this may offend the requirement in § 4-107 that the writing “is in existence when the will…is executed.” Section 4-411 contains curative provisions: “The legacy is valid even if the trust was amended or modified after the will was executed, and the legacy shall be given effect in accordance with the terms of the trust as they appear in writing on the date of death of the testator, including any amendment or modification.”
The standard incorporation by reference statute is held not to offend the requirement that wills must be executed with certain formality. These formalities are deemed to be important as a safeguard against fraud, undue influence or attempted disposition by an incompetent. A rule providing that the document incorporated by reference be in existence when the will is executed effectively provides that an ancillary document be acknowledged under the formalities of wills statute. Section 4-411, on the other hand, permits the ancillary document to be changed from time to time without benefit of the protective elements of the will statute. The formalities required for a revocable trust in Maryland are few; usually trust are simply notarized to enable recordation among state land records if there is real property involved.[2] In
The Restatement (Third) of Property: Donative Transfers § 3.6 distinguishes between incorporation by reference and the doctrine of integration. Incorporation by reference allows a writing that is not valid as a will but is in existence when a will is executed to be incorporated by reference into the will if the will manifests an intent to incorporate the writing and such writing is identified with reasonable certainty. Id. The doctrine of integration permits multiple pages to be treated as a single document that needs to be executed only once. Commonly such pages are fastened together, however there is no requirement that the pages of a will be fastened together. Extrinsic evidence may be admissible to show what the testator intended the will to comprise. For example, internal coherence among the various pages (i.e., one sentence overlapping two pages) is also evidence. SeeId. at § 3.5. The integration of multiple pages as a single unified will requires that all the pages be present at the execution of the instrument; incorporation by reference simply requires that the other document be in existence and referred to by the will.
Section 4-107 departs from Uniform Probate Code formulation by explicitly permitting administrative or fiduciary powers to be recorded in Maryland and incorporated by reference. This practice is followed by several firms within the state and permits a unified approach to fiduciary powers and presumably reduces the size of the instruments. The Maryland Attorney General has opinioned that when administrative provisions and fiduciary powers have been duly recorded and properly incorporated into a will, those recorded provisions need not be re-recorded as part of the probated instrument. 62 Op. Att’y Gen. Md. 909 (1977).
[1] A pourover will is one giving money or property to an existing trust. Black’s Law Dictionary (8th ed. 2004). [2] A bill was introduced by the Estates and Trusts Section of the Maryland State Bar Association in the 2001 General Assembly proposing required testamentary formalities for revocable trusts in Maryland. The bill was not reported out of committee.
