Report No. 110
V. Incorporation by Reference
13.24. Section 64-incorporation of papers by reference.-
This takes us to section 64, which deals with what is known in England as the incorporation of papers by reference. The section is concerned with a situation where a testator refers, in a will, to any other document then actually written, as expressing any part of the will in which it is referred to. From the wording of the section, it is obvious that the document must be in the existence at the time of the will, must be referred to in the will and must be clearly identified in the will.
These conditions are necessary, because otherwise, it would be possible for the testator to make a will in outline, reserving to himself the power to alter the incorporated document at some future date. The doctrine of incorporation under section 64 would apply only if the reference to another document is for the purpose of incorporation1.
The document so incorporated is normally included in the probate, unless it is unwieldy.
1. Bai Gangabai v. Bhugwan Das, ILR 29 Born 530.
13.25. No change of substance.-
Indian case law on the section is scanty. There are, no doubt, cases relating to secret trusts, but they are concerned with questions pertaining to the law of trusts, rather than with the language of section 64. The subject of secret trusts is dealt with in the case law relating to section 5 of the Indian Trusts Act, 1882. This matter, is, strictly speaking, outside the scope of section 64 of the Succession Act, since the testator intending a secret trust, does not, in the will, refer to any other document, either expressly or by implication.
13.26. Recommendation to amend section 64.-
However, it is necessary that the document must be described in the will as actually in existence. In order that this important requirement may find a mention in the section, we recommend that in section 64, after the words "actually in existence", the words, "and described as actually in existence" should be inserted.