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