The case of Lee v. Swain has a long history in Georgia, first going up to the Georgia Supreme Court in 2010.  In “Swain I,” the Georgia Supreme Court reversed the trial court’s grant of judgment on the pleadings and found that it was a question of fact whether two documents taken together were Eloise Collins’ will.  These two document were (1) an unwitnessed letter written in 1999 detailing how Collins wanted her property distributed after her death, and (2) a partially filled-out commercial will form that, while properly witnessed, did not address distribution of property.

When the case was sent back down to the trial court, a jury found that the two instruments together were “the true Last Will and Testament of Eloise Harley Collins.”

The caveator appealed on a number of grounds and the Georgia Supreme Court had another chance to weigh in on this case.  While the Court stayed mostly out of the substantive fray, it did provide a little guidance to estate planners.

A big part of the caveator’s appeal dealt with the jury charges.  The caveator requested a charge regarding incorporation by reference. The doctrine of incorporation by reference is the act of including a second document in another document just by mentioning that second document.  At common law, this doctrine had been applied to allow a testator to dispose of property outside of his or her will if provided for in a separate document referenced in the will.  Georgia estate planners may want to pay attention to what follows.

In Lee v. Swain, the caveator requested a jury charge that an extrinsic document must be described “clearly, explicitly, and unambiguously” to be incorporated into a will.  The trial court refused to include this instruction in its charge to the jury.  The Georgia Supreme Court affirmed, holding:

[The caveator] fails, however, to cite any authority indicating that the doctrine of incorporation by reference has been embraced in the context of wills under Georgia law.  Absent any support for the proposition that the doctrine of incorporation by reference applies in this context, it was not error for the trial court to refuse to give the requested charge.

In other words, if you want to dispose of property in a certain way – make sure you put it in your will rather than relying on that separate list of belongings and to whom you’d like them distributed after your death.

But, then again, as Lee v. Swain shows us, that separate list of property may end up being found to be part a of your will after all.