## Facts

- Mary Ella Gifford executed a typed will in 1986 and later executed a typed codicil in 1986.
- After Mary Ella’s death, her daughter, Julia Gifford Haines, petitioned to probate Mary Ella’s testamentary plan as a set of four documents: the 1986 typed will, the 1986 typed codicil, a two-page handwritten note dated 1980, and a two-page handwritten note dated 1986.
- Both handwritten notes were in Mary Ella’s handwriting, were signed by her, and set out specific gifts of household and personal items to named individuals.
- The handwritten notes were physically connected: the pages were numbered consecutively as a single sequence.
- The 1980 handwritten note comprised pages 1 and 2; the 1986 handwritten note comprised pages 3 and 4.
- All four handwritten pages were attached to the 1986 typed will.
- The 1986 handwritten note referred to earlier lists of bequests dated 1973, 1976, and 1980.
- The 1980 handwritten note bore a caption indicating it was a “1st section of bequests” tied to earlier years, including 1973, 1976, and 1980.
- Mary Ella’s son, Joel S. Gifford, Jr., did not dispute that the 1986 handwritten note was incorporated by reference into the 1986 will.
- Joel contested, however, whether the 1980 handwritten note was also incorporated into the 1986 will.
- The probate court ruled that the 1980 handwritten note was incorporated by reference into the 1986 will and admitted it as part of the will.
- Joel appealed the probate court’s ruling to the Arkansas Supreme Court.

## Issues

1. Whether the 1980 two-page handwritten, signed bequest list was incorporated by reference into Mary Ella Gifford’s 1986 typed will, where the will referenced the 1986 list and the 1986 list referred back to the 1980 list.
2. Whether the 1980 list was identified with sufficient certainty to be treated as part of the will, given the internal references, consecutive page numbering, and attachment of all four handwritten pages to the will.

## Decision

- The Arkansas Supreme Court affirmed.
- The court held that the 1980 handwritten note was incorporated by reference into the 1986 will and was properly admitted to probate as part of Mary Ella’s will.

## Legal Principles

- A document may be incorporated by reference into a will when it (1) exists at the time the will is executed, (2) is referred to in a way that shows intent to make it part of the will, and (3) is identified with reasonable certainty.
- Identification can be shown by the surrounding testamentary documents and circumstances, including consistent subject matter, cross-references to earlier lists, and physical connection of the papers.
- Consecutive pagination and attachment of writings to each other and to the will support a finding that the testator intended the writings to operate together as a single set of bequests.
- On appellate review of probate matters, the reviewing court considers the record de novo while giving weight to the probate court’s factual determinations unless clearly erroneous.

## Conclusion

Because the 1980 handwritten bequest list existed when the 1986 will was executed and was linked to the will’s personal-property scheme through the 1986 handwritten list’s references to earlier lists, the 1980 list’s identifying caption, and the consecutive numbering and attachment of all four handwritten pages to the will, the Arkansas Supreme Court affirmed the probate court’s ruling that the 1980 list was incorporated by reference and admitted as part of Mary Ella Gifford’s will.


Gifford v. Gifford, 805 S.W.2d 71 (1991)