[WSBAPT] Incorporation by Reference

[Eric Nelsen]

Rules of construction applicable to Wills also apply to Trusts. RCW 11.97.020. It's not possible to incorporate a document that is not in existence at the time the Will is executed, RCW 11.12.255, with the limited exception of the tangible personal property gift list authorized under RCW 11.12.260.

It might be arguable whether such incorporation is a "rule of construction" under RCW 11.97.020, but the identification of beneficiaries is so fundamental to the purpose of a Will (or Trust) that I wouldn't bet on a court allowing designation of beneficiaries in a writing created later. To allow such a thing would basically evade all the procedural safeguards that are supposed to protect against fraud, undue influence, etc. As well, it's fundamental to the creation of a Trust that the beneficiaries be named or described in a fashion that allows ascertainment of the beneficiaries.

It might be possible to give the Executor a general power of appointment, or a special power of appointment limiting the beneficiaries to a specific pool of people. Compare In re Long's Estate, 190 Wash. 196, 67 P.2d 331 (1937) (invalidating Will for failure to name specific beneficiaries), and In re Lidston's Estate, 32 Wn.2d 408, 202 P.2d 259 (1949) (affirming testator's grant of power of appointment to Executor to determine who is to receive residue of estate). That's not precisely the same result since the Executor would have discretion to determine how much to give each beneficiary, but it might get close to the client's goal. And, the special power of appointment, if that were the method, would have to name the beneficiaries in the Will or Trust at the time it was executed--so maybe that's not going to work either.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1417 31st Ave South
Seattle WA  98144-3909
phone 206-625-0092
fax 206-625-9040

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Heather de Vrieze
Sent: Wednesday, July 03, 2019 10:18 AM
To: 'wsbapt at lists.wsbarppt.com'; KCBA Real Property, Probate and Trust Law Discussion List
Subject: [WSBAPT] Incorporation by Reference

Clients request the darndest things. "Just make up my Will without naming beneficiaries and have it say that I will leave my executor a list of beneficiaries. I want to be able to change that list anytime."

In Wills it is clear that we can incorporate by reference any document existing at the time of making the Will by sufficient reference to the document in the Will. I would not attempt to have the Will incorporate a possible later created document, except as it relates to tangible personal property disposition.

Is there any reason to believe that such incorporation by reference of a later created document be OK in a Trust?

Any cites?

Heather

Heather S. de Vrieze
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