Summary
Summary Topic 11 - Incorporation by Reference
- Course
- Law of Succession (RDL2003H)
- Institution
- University Of Cape Town (UCT)
Incorporation by Reference
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111. INCORPORATION BY REFERENCE
What is incorporation by reference?
• The testator refers to another document in his will and the purpose of that document is to give
testamentary character to a will.
[The testator refers to another document in his will and tries to incorporate it into his will.]
2 scenarios:
A. The testator makes reference to an extrinsic document to give a will or provisions thereof
testamentary character à Not allowed.
B. Testator refers to an extrinsic document for interpretational purposes i.e. additional information to
help you interpret the will. à Allowed.
A.
What is a testamentary writing?
Ex parte Davies 1957 (3) SA 471 (N):
• The testator had left a sum of money (£200) ‘to a certain person who will not be named in this will
but whose name will be disclosed by me in a separate note of hand addressed to my executors.’
• When the testator executed his will, he handed his attorneys a sealed envelope which was opened
after his death and which contained a letter identifying the secret beneficiary. The letter had not been
properly executed.
• The question was whether the letter was a testamentary writing and therefore had to comply with
formalities for a valid will.
Court identified 3 elements for a valid testamentary disposition:
1. Clear identification of the property being bequeathed; (identify the benefit)
2. Interest therein being bequeathed; and (nature of the interest)
3. The beneficiary. (identify the beneficiary)
• The letter was found to have testamentary character and is therefore a testamentary writing that
cannot be incorporated by reference into a will.
• The testamentary writing was invalid as it did not comply with the statutory formalities.
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