Clark v. Greenhalge
411 Mass. 410, 582, N.E.2d 949 (1991)
Nesmith executed a will naming
her cousin, Greenhalge as the executor of her estate as well as the
The will left everything to
Greenhalge, except items "designated by a memorandum left by Nesmith
and known to Greenhalge, or in accordance with Nesmith's known
A writing in existence when a will is executed may be incorporated
by reference if the language of the
will manifests this intent and describes the writing sufficiently to
Nesmith kept a list of items
(aka the memorandum) she wanted to give to other people, and made
frequent changes to the list.
After executing the will,
Nesmith began keeping a list of items in a separate notebook, including
an entry giving her neighbor Clark a painting of a farm (worth $1800).
Clark testified that
Nesmith told her she could have it.
This notebook was not in
existence at the time the will had been executed.
After creating the notebook,
Nesmith executed a codicil to the
Nesmith died. Greenhalge
divvied up the property, following the will and the bequests made in the
memorandum, but refused to make gifts that were specified in the notebook.
The Probate Court found for
Clark. Greenhalge appealed.
The Probate Court found that
the notebook qualified as a 'memorandum'.
Since the will takes the
date of the codicil, the will was
officially executed after
the notebook came into existence, even though the original will was
executed before the notebook was created.
Therefore it can be incorporated
The Appellate Court affirmed.
The Massachusetts Supreme
argued that the notebook was not part of the memorandum and was therefore
not a testamentary devise.
It could be argued that the
notebook was just for drafts of what Nesmith was thinking about giving,
and that if she really intended the gifts to be given, she could have
easily included them in the memorandum.
Under the Uniform Probate
Code, there are three things outside
of a will that can be transferred during probate:
Things that are incorporated
by reference (UPC § 2-510)
Such as items on an
The list must be mentioned
in the will, and be in existence at the time the will was written.
Things of independent
significance that aren't specified at the time the will is executed. (UPC
For example, "the car
that I own when I die."
Legal lists (UPC § 2-513)
Personal property other
than money on a list prepared before
or after execution of the will.
Must be signed.
Only available in some
Better than an incorporation
by reference because you can change
it after the will is signed, but it is limited to non-monetary gifts.