Doggett v. Robinson, 345 S.W.3d 94 (Tex. App.—Houston [14th Dist.] 2011, no pet.).


Power of Appointment


Husband’s testamentary trusts granted Wife special powers of appointment over certain trust assets if she made a “specific reference” to the exercise of the power in her will. Husband’s will then provided a detailed scheme for distributing these assets if Wife did not exercise her powers of appointment. After Wife died, estate litigation ensued, some of which focused on whether Wife’s will validly exercised the power of appointment when it provided that she bequeathed “any other property over which I may have a power of appointment.”

The court held that Wife’ will was insufficient to exercise the power of appointment. The court assumed, but did not decide, that the language was sufficient to make a specific reference as Husband’s will as required even though it did not expressly refer to Husband’s trusts. Instead, the court noted that this provision indicated Wife’s intent to exercise the powers of appointment but did not state an appointee. Thus, the court examined the residuary clause to determine if it exercised the power when it bequeathed “my estate and property.” The court held that this language referred to Wife’s estate and property which would not encompass the powers of appointment she had the authority to exercise under Husband’s trusts. A power of appointment is not property or an estate in property. Instead it is power or right of disposition. Thus, Wife’s residuary clause cannot be considered as naming an appointee even if the language describing her intent would be deemed a sufficient specific reference to the power. The property subject to the powers of appointment never belonged or could belong to Wife because she did not have the authority to appoint to herself.

Note: Probate Code § 58c which governs the exercise of powers of appointment did not apply because Wife executed her will before the effective date of this section.

Moral: A testator who wishes to exercise a power of appointment must do so in a very clear and unambiguous manner and must be certain to designate an appointee.