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Embed by reference is a practice of including a second document as part of the first, saving space and time. It must be clearly described and attached to be valid, especially in wills where it can be problematic. Legal advice may be necessary.
Embed by reference is a practice in which a document includes a mention of a second document, with language indicating that the second document should be considered part of the first. The second document is usually attached to the first for review, but instead of being treated as an addition to the original document, it is read as if it were fully integrated into the original document. People must use this practice with care, as there may be instances where it is not considered legally valid.
This practice dates back to a time when legal documents were painstakingly produced by hand or on a typewriter. Reproducing the text for inclusion in another document was a painstaking process, and people would instead embed it by reference, cite the other document and attach a copy. To be considered valid, the attached document must be clearly discussed and described in the original, making it clear that it is indeed intended to be incorporated.
The decision to embed by reference can save space and time in the process of drafting a legal document. These can be important concerns with some types of documents, where citing references in line with the text could be a cumbersome process. As long as references are clear and documents are appropriately attached, the practice is generally valid and is considered acceptable. Not all lawyers are familiar with the standards for legal documents and if there are any questions about the possibility of incorporation by reference, it is advisable to consult a legal expert for advice.
Wills are the area where an incorporation by reference can become particularly problematic. There is concern that people may attach forged documents to a will, expecting the clauses in those documents to be enforced along with the original. If documents are attached after the witnesses’ signed page, it would be possible for someone to add them after the will has been witnessed in hopes of passing them off as valid.
In a will, if one is to incorporate by reference, the will itself must make it clear that the attached documents are intended to be read as part of the will and the descriptions cannot be vague, as there is no room for substitutions. In the case of a handwritten, handwritten, unwitnessed will, if the document is used as an attachment to a will, it must be the original, not a copy.
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