A « power of appointment that is not `general` is `special`. (Prob C § 611(d)) Article 20.2041-1(c)(1) states: « An appointing power is not a general power of attorney if, under its terms, it can either – (a) be exercised solely for the benefit of one or more designated persons or classes other than the testator or his creditors or the estate of the deceased or the creditors of his estate, or (b) may not expressly be exercised in favour of the testator or his creditors, or the estate of the deceased or the creditors of his estate. Section 2.1 covers at least two different types of « property. » Sylvia refers to « my property » in Article 2.1, which, by definition, does not include the property she was authorized to name. See Krause, 430 s.W.2d at 47. Sylvia also refers in section 2.1 to « any other excess property. which I could have authorized to name. Since the reference in Section 2.4 to « property » could reasonably mean « my property » without valid property, Sylvia`s intention to exercise the power of appointment over the remainder of the clause in section 2.4 is not « so clear that no other reasonable intention can be presumed under the will. » Republic nat`l Bank of Dallas, 283 S.W.2d to 47. These circumstances raise doubts « as to whether it was intended to exercise the power held by the grantor » and militate against the assertion that the power of appointment was « effectively exercised » by « such an act or transfer » in Article 2.4. See id. i (quoting Hill, 43 p.W. to 791 b) Karen`s will read: « I leave my computers confident to Jim for life, the rest will be named by Jim. » In his will, Jim stated, « I am leaving my entire estate, including the property over which I have appointing authority, my friend Jane. In addition, Mr. Schwartz, the only witness in court, testified about the circumstances surrounding the drafting of the will.
He said he asked Dorothy about her assets and the funding of bequests, and that she referred to money in baybank that could be used to settle bequests. He also testified that he did not ask to see Mary`s will before preparing Dorothy`s will, that he first learned of Mary`s trust after Dorothy`s death, and that Dorothy never asked him to exercise her power of appointment. Finally, Mr. Schwartz testified that Dorothy received large sums of money from another trust established by her father and administered as a trustee by the First National Bank of Boston, that Dorothy knew that the remains of both parents` estates were managed by trustees, that she received income from both trusts of approximately $20,000 per year, and that Dorothy had a checking account in a BayBank office. A special power of appointment may not be exercised in favour of the beneficiary. Therefore, the power to appoint persons other than the beneficiary, the beneficiary`s estate, the beneficiary`s creditors or the creditors of the estate is a special power of appointment. A power of appointment is a term most commonly used in testamentary law to describe the ability of the testator (the person who writes the will) to choose a person who has the power to dispose of certain property under the will. Although anyone can exercise this power at any time in their life, its use outside of a will is rare. Power is divided into two broad categories: general appointing powers and special appointment powers. The holder of appointing authority differs from the trustee of a trust in that he or she is not required to manage assets in order to generate income, but only to distribute them. A trust allows for much more flexibility in creating criteria and granting appropriate powers to trustees to change the composition, but these powers can also be included in the fiduciary instrument itself.
And for those who don`t want to design a trust, appointing power can achieve much of the same flexibility to a limited extent. 1. A special power of appointment may be exclusive or non-exclusive. If power is not exclusive, the recipient can completely exclude one of the many objects of power. Thus, the recipient has the option to assign full ownership to a member of the allowed object class and exclude the rest. In the case of non-exclusive authority, the beneficiary must set a certain amount for each of the authorized items. The illusory naming rule requires that each authorized object receive a substantial portion of the designated asset. All rules of will interpretation must correspond to the fundamental intention and purpose of the testator, as reflected throughout the document. Wright, 2 S.W.3d. to 672 (citing Shriner`s Hosp. for Crippled Children of Tex. See Stahl, 610 S.W.2d 147, 151 (Tex.
1980)). The testator`s intent must be determined from the language used in the four corners of the instrument. The question is not what the testator wanted to write, but the meaning of the Id words actually used. In the absence of ambiguity, we must interpret the will on the basis of the explicit language used […].