Master Massachusetts SJC held that a notebook listing gifts of tangible personal property was a valid memorandum incorporated by reference through a will republished by codicil, entitling the named recipient to a specific item. with this comprehensive case brief.
Clark v. Greenhalge is a leading Massachusetts case on incorporation by reference and the effect of republication by codicil in the law of wills. The decision addresses whether a testator may dispose of tangible personal property through an informal, separately written memorandum that is referenced in the will but not executed with testamentary formalities. It also clarifies how a codicil can "republish" a will, effectively changing the operative date of the will for purposes of determining whether the separate writing existed at a legally relevant time.
The case is frequently taught because it blends core doctrines—incorporation by reference, extrinsic evidence to identify referenced writings, and republication by codicil—with practical drafting considerations. It demonstrates how courts balance testamentary intent against formalities, particularly where a testator uses everyday instruments (like a notebook) to make specific bequests. Clark also serves as a cautionary tale for fiduciaries who selectively honor some memoranda but not others, and for drafters who want the flexibility of a separate list without risking invalidation.
411 Mass. 410, 582 N.E.2d 708 (Mass. 1991)
The decedent executed a will leaving her tangible personal property to be distributed by her executor in accordance with a "memorandum" she would leave. She later executed one or more codicils that confirmed and republished the will. Over time, the decedent kept a notebook in which she wrote entries listing specific items of tangible personal property (such as household items and artwork) and the names of intended recipients. The executor, Greenhalge, who also stood to take under the residuary clause, had knowledge of the notebook and used it to distribute some items following the decedent's death. However, he refused to deliver a particular valuable painting identified in the notebook to the plaintiff, Clark, contending that the notebook was not the memorandum referred to in the will, that it did not satisfy will-execution formalities, and that some entries postdated the will. Clark sued to enforce the bequest. The trial court ruled for Clark, and the executor appealed.
Whether a separately maintained notebook listing gifts of tangible personal property, referenced by a will's memorandum clause and in existence at the time of a republishing codicil, may be incorporated by reference so as to pass a specifically listed item to the named recipient.
A will may incorporate by reference a separate writing where (1) the will manifests an intent to incorporate the writing, (2) the will describes the writing sufficiently to permit its identification, and (3) the writing exists at the time the will (or a republishing codicil) is executed. A codicil republishes the will as of the codicil's date, thereby making the will speak as of that later date for purposes of incorporation by reference. When these conditions are met, the incorporated writing need not itself satisfy testamentary formalities to be given effect for the disposition of tangible personal property. Extrinsic evidence is admissible to identify the referenced writing.
Yes. The notebook was the memorandum referred to in the will, it was in existence at the time of the codicil that republished the will, and it was sufficiently identified and relied upon; therefore, the notebook was validly incorporated by reference, and Clark was entitled to the specifically listed painting.
The court emphasized that the will expressly contemplated a separate memorandum to guide the disposition of the decedent's tangible personal property and that the executor knew of, and in fact used, the notebook to make distributions. That conduct, together with extrinsic evidence, established that the notebook was the memorandum the will described. The court rejected the executor's argument that the notebook was an invalid testamentary instrument for want of formalities; the notebook did not operate independently but derived legal effect through incorporation by reference. The court further held that a codicil republishes a will as of the codicil's date, so the legally relevant question was whether the notebook (and the particular entry at issue) existed by the time of the codicil. Because the entry naming Clark for the painting predated the codicil, the timing requirement was satisfied. Concerns about fraud and uncertainty were addressed by requiring that the memorandum be identifiable from the will's reference and that it exist at the time of republication. The executor's selective reliance on the notebook to distribute some items but refusal to honor the bequest to Clark also undermined his position and supported giving effect to the decedent's clearly manifested intent.
Clark v. Greenhalge is a staple in Trusts & Estates courses for three reasons. First, it cleanly illustrates incorporation by reference and the evidentiary use of extrinsic proof to connect a will's generic reference to a specific writing. Second, it operationalizes the doctrine of republication by codicil, showing how a codicil can cure timing defects by making the will speak as of the codicil date. Third, it highlights drafting and administration practice: if a testator wants flexibility in disposing of tangible personal property by a changing list, a memorandum clause plus a later codicil can work in jurisdictions that recognize incorporation by reference—though a statute like UPC § 2-513 provides a clearer path. For fiduciaries, the case warns against selectively honoring informal lists; consistent treatment is both prudent and often legally compelled.
Massachusetts has been cautious about incorporation by reference, but Clark confirms that when a will clearly contemplates a separate memorandum disposing of tangible personal property, sufficiently identifies it, and the writing exists at the time the will or a republishing codicil is executed, the separate writing may be incorporated and given effect. Clark thus recognizes incorporation by reference in this specific, well-cabined context.
A codicil republishes a will as of the codicil's date. That meant the court asked whether the notebook (and the relevant entry for the painting) existed by the time of the codicil, not just the original will date. Because the entry predated the codicil, the timing element for incorporation by reference was satisfied.
Under Clark's reasoning, no. Incorporation by reference requires the referenced writing to exist at the time of the will or republishing codicil. Entries added after the last codicil would not be incorporated unless a new codicil republished the will after those entries, or a governing statute (e.g., UPC § 2-513) authorized a post-will separate writing.
No. The notebook was not functioning as an independent testamentary instrument. Its legal effect derived from the will's incorporation-by-reference clause. As long as the will satisfied formalities and properly incorporated the writing, the separate memorandum itself did not need to be witnessed or otherwise executed as a will.
The executor had used the notebook to distribute other items, which supported identifying the notebook as the memorandum referenced by the will and undercut his argument that it lacked legal effect. While the holding rests on incorporation by reference and republication by codicil, the executor's selective compliance reinforced the conclusion that the decedent intended the notebook to control.
Clark v. Greenhalge gives robust effect to a testator's intent to use a separate writing to dispose of tangible personal property, without undermining the Statute of Wills. By tying the validity of the memorandum to clear testamentary language and to the timing safeguard of republication by codicil, the court struck a pragmatic balance between formalism and flexibility.
For students and practitioners, Clark underscores the importance of precise drafting and periodic codicils if a client wants the freedom to update a separate list. It also reminds fiduciaries to administer estates consistently with the testator's expressed plan and warns that courts will enforce properly incorporated memoranda even when they thwart a residuary beneficiary's interests.
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