Exercise of Power of Appointment Created by Will Clause
(CA)

Summary

This template is a will provision and clause exercising a power of appointment created by the will of another person. This provision is applicable in California estate plans and should be included in the will if the testator is the donee of a power of appointment and wishes to exercise that power. This template contains practical guidance and drafting notes. If the instrument creating the power of appointment specifies requirements as to the manner, time, and conditions of the exercise of the power, it may generally be exercised only by complying with those requirements. While the court may excuse formal compliance if an actual appointment approximates the manner of appointment prescribed by the donor and the failure to satisfy the formal requirements does not defeat a significant purpose of the donor, the court may not excuse the testator's noncompliance with a direction that the power of appointment be exercised by an instrument that specifically refers to the power or to the instrument that created the power. The exercise of a power of appointment requires a manifestation of the donee's intent to exercise the power. Residuary clauses and general dispositions of all of the testator's property will not be sufficient to exercise a power of appointment without specific reference to the power or some other indication of intent to exercise the power. Unless the instrument granting the power of appointment so prohibits, the testator's will may exercise a power that is granted after the testator's will was executed. For a full listing of key clauses for use when drafting last wills and testaments, see Will Clauses Resource Kit. For more information about powers of appointment in wills, see Purposes and Uses of a Will (CA), Requisites, Instrumentation, and Will Provisions (CA), and Revocation, Revival, and Will Contests (CA).