Incorporation by reference

Wills, trusts and estates
Part of the common law series
Wills
Legal history of wills Joint wills and mutual wills Will contract Codicil Holographic will Oral will Sections Attestation clause Residuary clause Incorporation by reference Contest Testamentary capacity Undue influence Insane delusion Fraud No-contest clause Property disposition Lapse and anti-lapse Ademption Abatement Satisfaction of legacies Acts of independent significance Elective share Pretermitted heir Wills and conflict of laws
Trusts
Express Resulting Constructive Common types Bare Discretionary Accumulation and maintenance Interest in possession Charitable Purpose Incentive Other types Protective Spendthrift Life insurance Remainder Life interest Reversionary interest Testamentary Honorary Asset-protection Special needs (Supplemental needs) Governing doctrines Pour-over will Cy-près doctrine Hague Convention (conflict law) Application in civil law Dishonest assistance
Estate administration
Intestacy Testator Probate Power of appointment Simultaneous death Slayer rule Laughing heir Advancement Disclaimer of interest Inheritance tax
Related topics
Advance directive (Living will) Forced heirship Totten trust
Other common law areas
Contract Tort Property Criminal law Evidence

Incorporation by reference is the act of including a second document within another document by only mentioning the second document.^[1] This act, if properly done, makes the entire second document a part of the main document. Incorporation by reference is often done in creating laws as well as in contract law and trust and estate law.

In law regarding wills, it is a doctrine at common law which allows a testator, or a creator of a will, to dispose of assets in his estate in accordance with a separate document. To be valid, such a document must comply with the following requirements:

1. it must have existed at the time the will was executed;
2. the will must describe the document with particularity, so that it may be identified; and
3. the will must clearly manifest the intent that the document be incorporated.

An exception to the first requirement is made for small gifts of tangible personal property, such as household furniture and items of sentimental value.

Oral instructions can not be subject to incorporation by reference. For example, if a testator states in the will that he has recited to a third party the intended disposition of testamentary assets, such attempt to circumvent the requirements of a written will is void.

In administrative law, incorporation by reference is a drafting tool that enables federal agencies to give legal effect to materials that are already published elsewhere. This is allowed under a provision of the Freedom of Information Act, 5 U.S.C. § 552(a)(1). Section 552(a) requires agencies to publish regulations in the Federal Register in order to enforce them. Section 552(a)(1) provides that if material published elsewhere is "reasonably available to the class of persons affected" and the Director of the Federal Register approves its incorporation by reference, that material will be "deemed published" in the Federal Register. It is most controversially used to incorporate privately authored voluntary consensus standards into health and safety regulations without infringing the standards developers' copyright. Federal law and policy, embodied in the National Technology Transfer and Advancement Act of 1995 and Office of Management and Budget (OMB) Circular A-119, requires federal agencies to use these standards instead of creating "government-unique" technical standards purely to serve regulatory purposes.^[2]

References