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 principle beneficiary.
    • 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 wishes.”
      • 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 permit identification.
    • 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 official will.
  • 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. Clark sued.
  • 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 by reference.
  • The Appellate Court affirmed. Greenhalge appealed.
  • The Massachusetts Supreme Court affirmed.
    • Greenhalge unsuccessfully 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 independent list.
      • 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 § 2-512)
      • 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 States.
      • Better than an incorporation by reference because you can change it after the will is signed, but it is limited to non-monetary gifts.