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2002 SESSION

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CHAPTER 119 An Act to amend and reenact § 64.1-45.2 of the Code of Virginia, relating to incorporation by reference. [H 73] Approved March 7, 2002

Be it enacted by the General Assembly of Virginia:

1. That § 64.1-45.2 of the Code of Virginia is amended and reenacted as follows:

§ 64.1-45.2. Incorporation by reference; letter of instruction or memorandum into a will, power of attorney or trust instrument.

A. The following original documents may be incorporated by reference into a will, power of attorney or trust instrument:

1. A letter or memorandum to the fiduciary or agent as to the interpretation of discretionary powers of distribution where the will, power of attorney or trust instrument provides the fiduciary or agent the power to make distributions to beneficiaries in the discretion of the fiduciary or agent; and

2. A letter or memorandum stating the views or directions of the maker of the will, power of attorney or trust instrument as to the exercise of discretion by the fiduciary or agent in making health care decisions for the maker.

B. No provision in the original document sought to be incorporated by reference under this section that is enforceable if it contradicts or is inconsistent with a provision of the incorporating will, power of attorney or trust instrument shall be enforced, including if it alters the possession or enjoyment of trust property or the income therefrom as directed in the trust instrument.

C. This section shall not prevent the incorporation by reference of any writing into any other writing that would otherwise be effective under § 64.1-45.1 or under any other law of incorporation by reference.

D. The maker shall sign and have notarized the documents referenced in subsection A shall be signed and notarized, and may be prepared prepare the documents before or after the execution of the will, power of attorney or trust instrument.

2. That the provisions of this act are declarative of existing law.