Citation. Estate of Hamilton, 1989)
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Brief Fact Summary.
Testator Milton W. Hamilton (Testator) died, survived by his spouse, Anita G. Hamilton (Spouse) and daughters, Mary H. MacLaughlin and Gwendolyn H. Stevens, respondents in this action (Respondents). Petitioner Testator’s executor sought a determination as to whether Spouse had effectively exercised the power of appointment granted her in Testator’s 1982 will.
Synopsis of Rule of Law.
If a donor has expressly directed that no instrument shall be effective to exercise the power of appointment unless it contains a specific reference to the power, an instrument not containing such reference does not validly exercise the power.
Facts.
Testator died, survived by Spouse and Respondents. Spouse died 15 days after Testator. The will of Spouse was dated December 22, 1967. Testator’s will specifically required Spouse to refer to the power of appointment granted to Spouse by Testator in a subsequently executed 1982 will. The surrogate court determined that Spouse did not satisfy the “specifically reference” requirement of Testator’s will, and that therefore, in accord with Testator’s will, the remainder of the trust would pass to Testator’s residuary heirs. Petitioner seeks review of this order.
Issue.
If a donor has expressly directed that no instrument shall be effective to exercise the power of appointment unless it contains a specific reference to the power, does an instrument not containing such reference validly exercise the power?
Held.
No, if a donor has expressly directed that no instrument shall be effective to exercise the power of appointment unless it contains a specific reference to the power, an instrument not containing such reference does not validly exercise the power. Although the spouse had validly exercised the power of appointment granted to her by Testator’s 1966 will, that will was revoked by subsequent wills executed by Testator in 1975 and 1982. Therefore, Spouse did not satisfy the “specific reference” requirement contained in Testator’s 1982 will. Therefore, the surrogate court properly found that the remainder of the estate should pass to Testator’s residuary heirs. The specific power of appointment to which Spouse referred in her will was to a power that had ceased to exist. The surrogate court’s ruling is affirmed.
Discussion.
Because the wife did not specifically (and we mean specifically) reference the 1982 power of appointment, as required by the governing estate law, her attempt to employ this power was deemed invalid. Had the wife, subsequent to her husband’s 1982 will, executed a codicil that specifically referred to this 1982 will, then she would have properly exercised her power.
