The doctrine of incorporation by reference permits a document entirely separate and apart from a Last Will and Testament to be considered part of that document for the purpose of probate. This doctrine is commonly used to incorporate memoranda which typically detail bequests of certain belongings by the testator.
The doctrine is only applicable where there is a valid and duly executed Will into which the document may be incorporated into. Accordingly, it must satisfy the common law requirements, and those prescribed in statute by Ontario’s Succession Law Reform Act (“SLRA”).[1]
Through Ontario caselaw, the courts have elucidated the threshold requirements for a document to be incorporated into a Will by reference which are as follows:
(1) The document must be in existence at the time the Will is made
A document that postdates the execution of the Will in question cannot be incorporated under this doctrine, given it would then in effect enable the testator to create an unattested future codicil.[2] Accordingly, even if the document to be incorporated is sufficiently referred to and identified, but was made after the Will, then it cannot be incorporated.
In the early 1900s English case of Re Goods of Smart,[3] the court considered a Will and incorporation of a separate document. Specifically, the testator’s Will provided that:
I give to my said cousin, Margaret Rose Smart, all my furniture, books, plate, linen, wearing apparel, and personal effects of a like nature during her life for her own absolute use and benefit, and from and after her decease I direct my trustees to give to such of my friends as I may designate in a book or memorandum that will be found with this will the different articles specified for such friends in such book or memorandum, and as regards any of such articles not specifically disposed of by me, I declare that the said Margaret Rose Smart shall have full power to absolutely dispose thereof. [emphasis added]
As the Will contemplated incorporating a document to be made sometime in the future, there could be no incorporation. The Honourable Justice Gorrell Barnes noted that: “it is clear that, in order that the informal document should be incorporated in the validly executed document, the latter must refer to the former as a written instrument then existing – that is, at the time of execution – in such terms that it may be ascertained”.[4]
(2) The document to be incorporated must be described in the Will as being in existence at the time of making the will
Likewise, it is clear that a document referred to in the Will of the testator must be in existence at that time and not in reference to a future document to be created. Importantly, if the Will refers to an existing document that is subject to change, the document cannot be incorporated.[5]
(3) The document to be incorporated must be sufficiently described in the Will
On a practical level, this requirement ensures that it is apparent that the document submitted for admission to probate is the same as the document referred to in the Will. The onus of proving that these three requirements are met is on the propounder of the document for incorporation, on the civil standard of the balance of probabilities.[6]
Application in Re Lacroix Estate
One of the more recent examples of the doctrine of incorporation by reference being considered by the Ontario Superior Court of Justice was in Re Lacroix Estate.[7]
Background
In May 2020, Rebecca Stephanie Lacroix (“Ms. Lacroix”) contacted a drafting lawyer, and instructed her to prepare a Will. At this time, Ms. Lacroix was in hospital with a terminal illness.[8]
The drafting lawyer subsequently prepared a draft Will pursuant to Ms. Lacroix’s instructions. Unfortunately, the drafting lawyer and her assistant were denied access to the hospital where Ms. Lacroix resided to execute the Will, given the COVID-19 restrictions in place at the time. Instead, the drafting lawyer delivered the Will to the hospital, and instructed Ms. Lacroix to create a holographic Will which incorporated the draft Will by reference. Ms. Lacroix subsequently prepared a handwritten note which stated the following:
“I, Rebecca Stephanie Lacroix, declare that this holographic Will shall constitute my last will and testament and I hereby incorporate into this Will the attached draft Will, that I have initialed on each page for identification purposes”.[9]
Attached to that handwritten note was the draft Will, which was initialed on each page by Ms. Lacroix.
Application of Doctrine
Ms. Lacroix died less than two weeks after preparing the holographic document. The estate trustee named in the draft Will applied for a Certificate of Appointment of Estate Trustee.[10]
The court considered the statutory formalities for a valid Will and in particular, sections 6 and 7 of the SLRA which provide that:
Holograph wills
6 A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.
Position of signature
7 (1) In so far as the position of the signature is concerned, a will, whether holograph or not, is valid if the signature of the testator made either by him or her or the person signing for him or her is placed at, after, following, under or beside or opposite to the end of the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his or her will.[11]
The Court found that the handwritten document satisfied section 6 of the SLRA given it was made wholly in Ms. Lacroix’s handwriting. Moreover, it complied with section 7 of the SLRA as the signature immediately followed the handwriting. The handwritten document also indicated clear testamentary intent.[12]
The court then considered the doctrine of incorporation by reference. On the one hand, the court noted that the document in question complied with the statutory formalities. Unfortunately for the testator, the court could not incorporate the draft Will by reference as the holographic document did not stand alone as a testamentary document. In this regard, the note prepared by Ms. Lacroix did not independently make any disposition of property.[13]
For these reasons, the handwritten note and the attached draft Will could be admitted to probate, and the issuance of a Certificate of Appointment of Estate Trustee was denied.[14]
Concluding Comments
The probate doctrine of incorporation by reference is readily used in matters of probate. As noted in Lacroix Estate, the testamentary document in question must comply with the statutory formality requirements. In Black Estate v. Black,[15] the Honourable Justice Morisette noted that:
the conditions for the application of the doctrine of “incorporation by reference” are very strict. As stated by Feeney:
Where those conditions exist, the doctrine has freely been used in connection with formal wills to breathe life into informal testamentary papers, regardless of the fact that the doctrine permits a court to admit to probate a paper that “flies in the face” of the wills legislation.[16] [emphasis added]
—
[1] Succession Law Reform Act, RSO 1990, c S.26 (“SLRA”).
[2] Re Currie; Labatt v. M.N.R. (1978), 91 D.L.R. (3d) 559 (Ont. H.C.).
[3] Re Goods of Smart, [1902] P. 238 (Eng HC – Prob Div), cb p.163.
[4] Ibid.
[5] Re Jones, [1942] Ch. 328; Oosterhoff on Wills (8th ed, Thompson Reuters) at page 137.
[6] Thomas Estate v. Gay (1996)199614 E.T.R. (2d) 229 (Ont. Gen. Div.), at p. 6.
[7] Re Lacroix Estate, 2021 ONSC 2919 (“Lacroix Estate”).
[8] Ibid. at paras 1 – 4.
[9] Ibid. at paras 1 – 7.
[10] Ibid. at para 7.
[11] SLRA at section 6 and 7(1).
[12] Lacroix Estate at para 24.
[13] Lacroix Estate at paras 25 – 27; Bennett v. Toronto General Trusts Corp., 1958 CanLII 49 (SCC), [1958] S.C.R. 392, at p. 396.
[14] Lacroix Estate at para 28.
[15] Black Estate v. Black, 2006 CarswellOnt 9030.
[16] Ibid. at para 20, citing MacKenzie J., Feeney’s Canadian Law of Wills, 4th Edition(Toronto: Butterworths Canada Ltd., 2000), at 4.52.
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Written by: Oliver O'Brien
Posted on: December 22, 2025
Categories: Commentary, WEL Newsletter
The doctrine of incorporation by reference permits a document entirely separate and apart from a Last Will and Testament to be considered part of that document for the purpose of probate. This doctrine is commonly used to incorporate memoranda which typically detail bequests of certain belongings by the testator.
The doctrine is only applicable where there is a valid and duly executed Will into which the document may be incorporated into. Accordingly, it must satisfy the common law requirements, and those prescribed in statute by Ontario’s Succession Law Reform Act (“SLRA”).[1]
Through Ontario caselaw, the courts have elucidated the threshold requirements for a document to be incorporated into a Will by reference which are as follows:
(1) The document must be in existence at the time the Will is made
A document that postdates the execution of the Will in question cannot be incorporated under this doctrine, given it would then in effect enable the testator to create an unattested future codicil.[2] Accordingly, even if the document to be incorporated is sufficiently referred to and identified, but was made after the Will, then it cannot be incorporated.
In the early 1900s English case of Re Goods of Smart,[3] the court considered a Will and incorporation of a separate document. Specifically, the testator’s Will provided that:
I give to my said cousin, Margaret Rose Smart, all my furniture, books, plate, linen, wearing apparel, and personal effects of a like nature during her life for her own absolute use and benefit, and from and after her decease I direct my trustees to give to such of my friends as I may designate in a book or memorandum that will be found with this will the different articles specified for such friends in such book or memorandum, and as regards any of such articles not specifically disposed of by me, I declare that the said Margaret Rose Smart shall have full power to absolutely dispose thereof. [emphasis added]
As the Will contemplated incorporating a document to be made sometime in the future, there could be no incorporation. The Honourable Justice Gorrell Barnes noted that: “it is clear that, in order that the informal document should be incorporated in the validly executed document, the latter must refer to the former as a written instrument then existing – that is, at the time of execution – in such terms that it may be ascertained”.[4]
(2) The document to be incorporated must be described in the Will as being in existence at the time of making the will
Likewise, it is clear that a document referred to in the Will of the testator must be in existence at that time and not in reference to a future document to be created. Importantly, if the Will refers to an existing document that is subject to change, the document cannot be incorporated.[5]
(3) The document to be incorporated must be sufficiently described in the Will
On a practical level, this requirement ensures that it is apparent that the document submitted for admission to probate is the same as the document referred to in the Will. The onus of proving that these three requirements are met is on the propounder of the document for incorporation, on the civil standard of the balance of probabilities.[6]
Application in Re Lacroix Estate
One of the more recent examples of the doctrine of incorporation by reference being considered by the Ontario Superior Court of Justice was in Re Lacroix Estate.[7]
Background
In May 2020, Rebecca Stephanie Lacroix (“Ms. Lacroix”) contacted a drafting lawyer, and instructed her to prepare a Will. At this time, Ms. Lacroix was in hospital with a terminal illness.[8]
The drafting lawyer subsequently prepared a draft Will pursuant to Ms. Lacroix’s instructions. Unfortunately, the drafting lawyer and her assistant were denied access to the hospital where Ms. Lacroix resided to execute the Will, given the COVID-19 restrictions in place at the time. Instead, the drafting lawyer delivered the Will to the hospital, and instructed Ms. Lacroix to create a holographic Will which incorporated the draft Will by reference. Ms. Lacroix subsequently prepared a handwritten note which stated the following:
“I, Rebecca Stephanie Lacroix, declare that this holographic Will shall constitute my last will and testament and I hereby incorporate into this Will the attached draft Will, that I have initialed on each page for identification purposes”.[9]
Attached to that handwritten note was the draft Will, which was initialed on each page by Ms. Lacroix.
Application of Doctrine
Ms. Lacroix died less than two weeks after preparing the holographic document. The estate trustee named in the draft Will applied for a Certificate of Appointment of Estate Trustee.[10]
The court considered the statutory formalities for a valid Will and in particular, sections 6 and 7 of the SLRA which provide that:
Holograph wills
6 A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.
Position of signature
7 (1) In so far as the position of the signature is concerned, a will, whether holograph or not, is valid if the signature of the testator made either by him or her or the person signing for him or her is placed at, after, following, under or beside or opposite to the end of the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his or her will.[11]
The Court found that the handwritten document satisfied section 6 of the SLRA given it was made wholly in Ms. Lacroix’s handwriting. Moreover, it complied with section 7 of the SLRA as the signature immediately followed the handwriting. The handwritten document also indicated clear testamentary intent.[12]
The court then considered the doctrine of incorporation by reference. On the one hand, the court noted that the document in question complied with the statutory formalities. Unfortunately for the testator, the court could not incorporate the draft Will by reference as the holographic document did not stand alone as a testamentary document. In this regard, the note prepared by Ms. Lacroix did not independently make any disposition of property.[13]
For these reasons, the handwritten note and the attached draft Will could be admitted to probate, and the issuance of a Certificate of Appointment of Estate Trustee was denied.[14]
Concluding Comments
The probate doctrine of incorporation by reference is readily used in matters of probate. As noted in Lacroix Estate, the testamentary document in question must comply with the statutory formality requirements. In Black Estate v. Black,[15] the Honourable Justice Morisette noted that:
the conditions for the application of the doctrine of “incorporation by reference” are very strict. As stated by Feeney:
Where those conditions exist, the doctrine has freely been used in connection with formal wills to breathe life into informal testamentary papers, regardless of the fact that the doctrine permits a court to admit to probate a paper that “flies in the face” of the wills legislation.[16] [emphasis added]
—
[1] Succession Law Reform Act, RSO 1990, c S.26 (“SLRA”).
[2] Re Currie; Labatt v. M.N.R. (1978), 91 D.L.R. (3d) 559 (Ont. H.C.).
[3] Re Goods of Smart, [1902] P. 238 (Eng HC – Prob Div), cb p.163.
[4] Ibid.
[5] Re Jones, [1942] Ch. 328; Oosterhoff on Wills (8th ed, Thompson Reuters) at page 137.
[6] Thomas Estate v. Gay (1996)199614 E.T.R. (2d) 229 (Ont. Gen. Div.), at p. 6.
[7] Re Lacroix Estate, 2021 ONSC 2919 (“Lacroix Estate”).
[8] Ibid. at paras 1 – 4.
[9] Ibid. at paras 1 – 7.
[10] Ibid. at para 7.
[11] SLRA at section 6 and 7(1).
[12] Lacroix Estate at para 24.
[13] Lacroix Estate at paras 25 – 27; Bennett v. Toronto General Trusts Corp., 1958 CanLII 49 (SCC), [1958] S.C.R. 392, at p. 396.
[14] Lacroix Estate at para 28.
[15] Black Estate v. Black, 2006 CarswellOnt 9030.
[16] Ibid. at para 20, citing MacKenzie J., Feeney’s Canadian Law of Wills, 4th Edition(Toronto: Butterworths Canada Ltd., 2000), at 4.52.
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