It should be noted that Section 2.1 itself does not transfer ownership to Beverly or any other identified recipient. The Robinson estate argument depends on the combination of Article 2.1 with the phrase „my estate and property” in the residual clause of Article 2.4. Therefore, the burden of proving a sufficiently `clear` intention to exercise the power of appointment must be borne to a large extent by the residual clause in section 2.4. These principles underlie two Supreme Court decisions over the past fifteen years that, while not directly relevant, provide an instructive discussion of the issue of the successful exercise of appointment powers. Robinson`s estate filed a traditional application for interim measures under Rule 166a(c), arguing that he was not liable to the Doggett plaintiffs because Sylvia had properly exercised her power to name Beverly in her will. The Doggett plaintiffs also filed a traditional application for summary judgment, arguing that (1) John`s will authorized Sylvia to exercise her appointing power solely for the benefit of John`s „descendants” as that term is defined in section 9.3 of John`s will; and (2) Beverly is not one of John`s defined „descendants.” First, the alternative argument of the Robinson estate requires the court to make a major transaction on the residual clause of Article 2.4 by grafting the bracketed phrase [including the assets over which I have the power of appointment] onto „my estate and property”. Cf. Krause, 430 S.W.2d at 48-49 (residual clause expressly sold all other property „which I may possess or claim at the time of my death or over which I then have the power to dispose of”). We cannot do this because „the courts cannot reformulate, amend or add provisions under the pretext of interpreting the wording of the will to reflect an alleged intention of the testator.” Shriner`s Hosp., 610 S.W.2d at 151. A special power of appointment may not be exercised in favour of the donee. Therefore, the power to appoint a person other than the donee, the estate of the donee, the creditors of the donee or the creditors of the estate is a special power of appointment. Section 610(d) of the California Estate Code defines a donee as „the person to whom an appointing authority is granted or for whose benefit an appointing authority is reserved.” According to article 610 (e) of the Succession Code, the donor is the „person who creates or reserves a power of appointment”. The appointed person is the person in whose favour a power of appointment is exercised (Prob Code § 610 (a)) and the designated property means ownership or interest in the property that is the subject of the power of appointment (Prob C § 610 (b)).
b) Karen`s will states, „I leave my computers to Jim for life, Jim determines the rest.” In his will, Jim stated, „I leave all my estate to my friend Jane, including the property over which I have the power to appoint.” 2. It is appropriate to comment briefly on the applicant`s various arguments seeking to avoid finding a failure to fulfil obligations in the exercise of the power. Even with this threshold assumption, Robinson`s estate must still demonstrate that the reference in section 2.1 to „any other property over which I have appointing authority” can be read in conjunction with the remainder of section 2.4 in order to obtain a valid exercise of the appointing authority in favour of Beverly. The evaluation of the latter proposal requires careful consideration of the phrase „my estate and property,” as this is what Sylvia Beverly gave to section 2.4 „everything else, rest and rest.” The same kind of flexibility, albeit in a narrower sense, can be created through the use of appointment powers that allow an appointee to choose who should receive distribution at a later date. The Basic Law and the practical application of these powers are discussed in this article. In Shine v. Monaha, 354 Mass. 680, 241 N.E.2d 854 (1968), the donor of a living persons trust requested that a general power of appointment be exercised „by express reference in her [donee] will to the power of attorney so created”. The donee`s will provided for the distribution of „all remains, remains, and remains of my property, including all property that I have appointed as living under a will or trust executed by my husband [the donor].” The actual exercise of authority was established according to the principles of reconciliation, because the donor`s purpose (to prevent an accidental exercise of authority) had been achieved by the donee`s deliberate reference to all appointing powers granted by her husband, the donor.
The decision should not overlook the careful distinction between the court and the case before it and situations, such as National Shawmut Bank v. Joy, op. cit. cit., where the donor requested a specific reference and the donee merely referred in general terms to any appointment power of the donee. 354 Mass. 680, 241 N.E.2d 854. The facts of the case flow from the judge`s findings. On April 1, 1957, Mary F. Cox made a will that the remainder of her estate would be held in trust during the lifetime of her daughter Dorothy Cox.
After Dorothy`s death, the trustee was appointed by Mary`s Trust to pay the trust capital to that person or persons, including Dorothy`s executor, as Dorothy „will appoint by will specifically according to the power conferred on her hereunder.” If Dorothy did not exercise her general power of appointment, the managing trustee was to be paid to the New England Deaconess Hospital. Mary`s will was admitted to the estate on August 5, 1968 and on July 17, 1970, BayBank Merrimack Valley, N.A. (BayBank) has been appointed to succeed the original trustee. „Appointing authority”. Merriam-Webster.com Legal Dictionary, Merriam-Webster, www.merriam-webster.com/legal/power%20of%20appointment. Retrieved 9 January 2022. The will also states that the family trust assets may be distributed to Sylvia or John`s descendants during Sylvia`s lifetime if necessary for their maintenance. In section 4.3, John`s will grants Sylvia lifetime authority over the income and capital of the family trust and a „specific reference” power of attorney in her will.
John`s will states that the family trust ends „when my wife dies or if none of my children lives and is under 40 years of age, whichever is later.” John`s will directs that all non-designated assets of the family trust present at termination be distributed according to the same schedule as the non-designated assets of the matrimonial trust. A special appointment authority allows the beneficiary to distribute designated property to a specific group or group of persons, other than the donee, the donee`s estate, the donee`s creditors or creditors of the donee`s estate. [2] For example, a testator may grant his brother a special power to divide property among his three children. The brother would then have the power to choose which of the testator`s children would receive which property. Unlike a general power of appointment, the refusal of the named party to exercise a particular appointing authority results in the return of property designated as gifts to members of a group or class. The Doggett plaintiffs argue, on a preliminary basis, that the wording of section 2.1 does not constitute the „specific reference” required by John`s will, since the wording of section 2.1 does not explicitly refer to John`s will, the power of attorney granted in John`s will, or trusts. We assume, without ruling, that Sylvia`s stated intention in section 2.1 to dispose of „any other property over which I have the authority to name” satisfies the „specific reference” requirement of sections 3.4 and 4.3 of John`s will. But that`s only the first hurdle.
In addition to general and special powers, donors may restrict when power can be exercised by donees. Testamentary powers of attorney are usually indicated by the inclusion of restrictive language in the deed of grant, such as „B for life, rest to persons whom B calls `by will`”.